









































































































































/• 

















THE 



*| |S> C 1,‘ 

HIGHWAY SYSTEM; 


OR A 


COMPENDIUM OF THE STATUTES AND DECISIONS 


PERTAINING 


TO ROADS AND BRIDGES, AND HIGHWAYS GENERALLY, IN THE 
STATE OF ILLINOIS, WITH THE USUAL FORMS AND PRE¬ 
CEDENTS FOR ESTABLISHING, ALTERING, MAIN¬ 
TAINING, AND VACATING ROADS, SUP¬ 
PORTED BY COPIOUS NOTES 
AND REFERENCES 


By EDWARD J. HILL. 


u 


CHICAGO: 

E. B. MYERS, LAW PUBLISHER 


93 Washington Street. 

1873 . 



Entered, according to Act of Congress, in the year eighteen hundred and 

seventy-three, 

By EUGENE B. MYERS, 

In the office of the Librarian of Congress, at Washington. 







/ 


6Q T 


PREFACE. 


This compilation is intended for the use of 
public officers. It contains the text of the Acts 
of 1873 relating to Hoads and Bridges, and 
numerous forms suggested for the purpose of 
meeting the requirements of such Acts. No 

claim to originality is^made in the production 

♦ 

of this work. The points aimed at are utility 
and convenience. 

Chicago, June 2, 1873 . 



y 


SUMMARY OF CONTENTS. 


SECTION I. 

Introduction — Highways Generally, - - -1-7 

SECTION II. 

Roads and Bridges in Counties under Primary 

Organization,. 7-60 

SECTION III. 

Roads and Bridges in Counties under Township 

Organization,.61 - 151 

SECTION IV. 

Streets and Alleys,.151 - 154 

SECTION V. 

Rivers and Ferries,.155 - 163 

SECTION VI. 

Railways and Canals,.164 -173 

SECTION VII. 

Turnpikes, Toll Bridges, and Plank Roads, - - 174-176 

SECTION VIII. 

Private Ways,. 176-178 

Index,*.- - 179 

* A complete analytical and alphabetical index will be found at page 179, 
concluding this volume. See “Primary Organization” and “Township 
Organization ” in this index for further particulars. 









TABLE OF OASES.* 


Adsit v. Brady, 4 Hill 630...... 68 

Allison v. Commissioners of Highways, 54 Ill. 170_34, 100 

Alvord v. Ashley, 17 Ill. 363___ _13, 15, 154 

Anderson, Gale v. 13 Ill. 443 .... .... 158 

Artcher, Mohawk, etc. v. 6 Paige 83 ... 118 

Ashley, Alvord v. 17 Ill. 363 ..... .13, 15, 154 • 

Aspinwall, Todemier v. 43 Ill. 401... 27 

Aurora v. Reed, 58 Ill. 29 ...____151, 152 

Baker, Warne v. 24 Ill. 351 ..._ 141 

Baker, Warne v. 35 Ill. 382 . 104 

Barker v. Loomis, 6 Hill 619..... _ 66 

Bartlett v. Crozier, 17 Johns. 452.....66, 68 

Baumgarten, Commissioners of Highways v. 41 Ill. 254 _ 108 

Bay, City of Bloomington v. 42 Ill. 503_ 14 

Beckwith v. English, 51 Ill. 147_ 109 

Benedict v. Gort, 3 Barb. 469..... 102 

Betts v. Menard, Breese Appendix 10..... 158 

Beyer v, Tanner, 29 Ill. 135_ 35 

Bickerdike v. Dean, 21 Ill. 199_____ 38 

Black, Railroad Co. v. 58 Ill. 33___ 170 

Bolles, Dudley v. 24 Wend. 465 ___ 64 

Bond Co., White Administrator v. 58 Ill .. 67 

Brace v. N. Y. Central R. R. Co., 27 N. Y. 269....... 13 

Brady, Adsit v. 4 Hill 630--- 68 

Briggs, Radway v. 37 N. Y. 256.. 13 

Brooklyn, Radcliff v. 4 N. Y. 203---- 102 

Brooks v. Hart, 24 N. H. 307 ....— 64 

Brown Co. Commissioners, Nealy v. 1 Gilm. 10- 13, 25 

Brown, County of Sangamon v. 13 Ill. 207_____26, 36 

Brown, Mills v. 2 Scam. 549..... 158 

Brown, Stepliani v. 40 Ill. 428------ 39 


* Very many of the citations are to the reports of other states. We have 
given the full title to cases at home, and those recognized by the supreme 
court, as tabulated. 





































VI 


TABLE UE CASES. 


Bullerdick, Gear v. 34 111. 75... 

Burdick v. Warrall, 4 Barb. 596. 

Bussell v. Town of Steuben, 57 11035.. 

Busson, Town of Vinegar Hill v. 42 111. 45 .... 

Canal Trustees v. Haven, 11 111. 554 . 

Canal Trustees, Hoes v. 14 111. 402... 

Carr, Wayde v. 2 Dow. & Ry. 255__ 

Cay wood, Walker v. 31 N. Y. 51... 

Center v. Finney, 17 Barb. 94___ 

Chamberlain, Robinson v. 34 N. Y. 380.. 

Chambers, Dundy v. 23 111. 309..... 

Cliamplin v. Morgan, 20 Ill. 181 __ 

Chicago v. Gallagher, 44 Ill. 295... 

Chicago v. Johnson, 53 III. 91_ 

Chicago v. Laflin, 49 111. 172..... 

Chicago v. Larned, 34 Ill. 203 .. 

Chicago, Kelly v. 48 Ill. 388........ 

Chicago v. McGinn, 51 Ill. 200 _ _ _ 

Chicago, Rees v. 38 Ill. 322... 

City of Alton, Godfrey v. 12 Ill. 30.__ 

City of Alton v. HI. Trans. Co., 12 Ill. S-8_ 

City of Alton, Sawyer v. 3 Scam. 127__ 

City of Aurora, Dunning v. 40 Ill. 481.. 

City of Belleville v. Stookey, 33 111. 441_ _ 

City of Bloomington v. Bay, 42 111. 503 .. 

City of Brooklyn, Grant v. 41 Wend. 381__ 

City of Galena, Ill. Central R. R. Co. v. 40 Ill. 344 

City of Joliet v. Verley, 35 III. 58... 

City of Lacon v. Page, 48 111. 499.... 

City of Ottawa, Korali v. 32 Ill. 121 .. 

City of Peoria, Cole v. 18 Ill. 301. 

City of Peoria v. Johnston, 56 Ill. 45.. .. 

City of Peoria, Nevins v. 41 Ill. 502_ 

City of Rockford, Fox v. 38 Ill. 451.... 

Clatiin v. Wilcox, 18 Vt. 605 ___ 

Clark, Kingston Mut. Ins. Co. v. 33 Barb. 196_ 

Claypole v. McAllister, 20 Ill. 504 ... 

Clifford v. Town of Eagle, 35 Ill. 444 ___ 

Clisbee, Fisher v. 12 Ill. 344.. 

Clyde, Town of Galen v. 27 Barb. 543.. 

Colden v. Tliurber, 2 Johns. 424.. 

Cole v. City of Peoria, 18 Ill. 301.._ 

Commissioners of Highways, Allison v. 54 Ill. 170 


158 

64 

67 
15 

23, 152 

25 
8 

66 

65 

68 

159 

26 
46 
14 

154 

154 


14, 40, 160 
..153, 154 
... 153 

... _ 154 

51 

38 

13 

14 
64 

39 

... 40; 46 
46 


. 142 

. 14,26 
15 
51 

65 
71 

159, 160 
27 
159 
68 

66 

. 142 

.34, 109 













































1 ABLE OJ? CASES. yjj 

Commissioners of Highways v. Baumgarten, 41 Ill. 254 ... 108 

Commissioners of Highways v. Durham, 48 Ill. 80_ 07 

Commissioners of Highways, Mack v. 41 Ill. 878. 141 

Commissioners of Highways v. Supervisors, 58 Ill. 820_ 188 

Commissioners of Highways v. The People, 38 Ill. 348_15, 27 

Commissioners of Highways, The People v. 52 Ill. 408_ 14 

Commissioners v. Harper, 38 Ill. 104 ....15, 108, 100 

Commissioners of Hudson, People v. 7 Wend. 474_ 00 

Commissioners of Sonora v. Supervisors of, etc. 27 III. 141. 180 

Conrad v. Trustees of Ithaca, 10 N. Y. 158... 08 

Coombs v. Parrington, 42 Me. 332.... 05 

Corley v. Kennedy, 28 Ill. 143 ____100, 180 

Corporation of Albany, People v. 11 Wend. 530 _ 08 

County Commissioners, Hutchins v. 1 Gilm. 845 _ 20 

County Commissioners, Mills v. 8 Scam. 53.. 158 

County of Salop, Rex v. 18 East 05 .... 18 

County of Sangamon v. Brown, 13 Ill. 207.... 20, 30 

Coursen v. Ely, 37 Ill. 388 ....... H 

Craig v. The People, 47 Ill. 487..... 14, 30, 40 

Crear v. Crossly, 40 Ill. 175..____30, 154, 178 

Crosby v. Gibbs, 10 Ill. 310______ 88 

Crossly, Crear v. 40 Ill. 175..80, 154, 178 

Crozier, Bartlett v. 17 Johns. 452__00, 08 

Daniels v. The People, 21 111.480...20, 154 

Dartmouth College v. Woodward, 4 Wheat. 518.. 108 

Davenpeck v. Lambert, 44 Barb. N. Y. 500 .. 00 

Day, McCann v. 57 Ill. 101 ...... 178 

Dean, Bickerdike v. 21 Ill. 100.___ 88 

Dempsey v. Donnelly, 58 Ill. 40.... ...114, 10, 23, 20, 32 

Dennis v. Maynard, 15 Ill. 477.. 25 

Dimon v. The People, 17 Ill. 410 ...15, 20, 153 

Donnelly, Dempsey v. 58 Ill. 40 ...14, 10, 23, 20, 32 

Drainage Co. Hessler v. 53 Ill. 105.....50, 154 

Dudley v. Bolles, 24 Wend. 405..... 04 

Dumoss v. Francis, 15 Ill. 543.... 20, 38 

Dundy v. Chambers, 23 Ill. 300... 150 

Dunlap v. Trustees etc. of Mt. Sterling, 14 Ill. 251.. 142 

Dunning v. City of Aurora, 40 Ill. 481..... 38 

Durham, Commissioners of Highways v. 43 Ill. 80.. 37 

Dygert v. Sclienck, 23 Wend. 440.. GO 

Earing v. Lansing, 7 Wend. 185__ 04 

Eden, Ellis v. 30 Lond. Law Times 001.— 168 

Eighth Av. R. R. Co. Hegan v. 15 N. Y. 380 .. 04 








































Viii TABLE OF CASES. 

Ellis v. Eden, 30 Lond. Law Times 601-'--- 168 

Ely, Coin-sen v. 37 Ill. 388 ...- - 11 

English, Beckwith v. 51 Ill. 147.. 109 

Eyman v. The People, 1 Gilm. 4..... 13, 25 

Ferris v. Ward, 4 Gilm. 499 ___26, 36, 38 

Figley, Hill v. 23 Ill. 418.... 51 

Finney, Center v. 17 Barb. 94____ 65 

Fish v. Mayor of Rochester, 6 Paige 272.. 102 

Fisher v. Clisbee, 12 Ill. 344___ 159 

Fowler v. Mott, 19 Barb. 204.... 13 

Fox v. City of Rockford, 38 Ill. 451...... 51 

Francis, Dumoss v. 15 Ill. 543___26, 38 

Fredericks, The People v. 48 Barb. 173..... 90 

Fuller v. Fullerton, 14 Barb. 59... 71 

Fullerton, Fuller v. 14 Barb. 59.. 71 

Gale v. Anderson, 13 Ill. 443 ...._. 158 

Gallagher, Chicago v. 44 Ill. 295..... 46 

Garlingliouse v. Jacobs, 29 N. Y. 303 _ 66, 68 

Gear v. Bullerdick, 34 HI. 75____ 158 

Gentleman v. Soule, 32 Ill. 271____14, 15, 154 

Gipps, Crosby v. 19 Ill. 310___ 38 

Godfrey v. City of Alton, 12 Ill. 30 ..__. 153 

Gort., Benedict v. 3 Barb. 469 _.___.. 102 

Grant v. City of Brooklyn, 41 Wend. 384... 64 

Graves v. Otis, 2 Hill 470 _’... 102 

Gray v. Waterman, 40 Ill. 523___ 39 

Green v. Green, 34 Ill. 320___139, 142 

Green v. Oakes, 17 Ill. 249 ____ 153 

Grube v. Nichols, 36 Ill. 92._. . .. 15, 26 

Guptail v. Teft, 16 Ill. 365 ___ 35 

Harper, Commissioners v. 38 Ill. 104 ._.....15, 108, 109 

Harper, Marion Co. v. 44 Ill. 482 .. 36 

Hart, Brooks v. 14 N. H. 307 ___ 64 

Harvey, Peoria Co. v. 18 Ill. 364___ 142 

Iiarward v. St. Clair Drain Co., 51 Ill. 130.... 50, 154 

Haven, Canal Trustees v. 11 Ill. 554____ 13, 152 

Hegan v. Eighth Av. R. R. Co., 15 N. Y. 380_.. 64 

Hessler v. The Drainage Commissioners, 53 Ill. 105_50, 154 

Hickok v. Trustees of Plattsburgh, 16 N. Y. 161 . . 68 

Hicks, Wells v. 27 Ill. 345__.._108, 109, 112, 133 

Hill v. Figley, 23 Ill. 418....... 51 

Hiner v. The People, 34 Ill. 297 ...... 15 

Hoes v. Canal Trustees, 14 Ill. 402... 25 













































TABLE OF CASES. 


IX 


Howard, Nance v. Breese 183 .._. 

Hunsaker v. Wright, 30 Ill. 146... 

Hunter v. Middleton, 13 Ill. 50. 

Hunting, Talinage v. 29 N. Y. 447... 

Hutchins v. Co. Commissioners, 1 Grilm. 345.. 

Hyatt v. Trustees of Rondout, 44 Barb. 391__ 

Illinois Trans. Co., Citv of Alton v. 12 Ill. 38.. 

Illinois Riv. Packet Co. v. Peoria Bridge Ass., 38 Ill. 467 

Ireland v. Oswego etc. Plank Road Co., 13 N. Y. 531_ 

Jacobs, Garlingliouse v. 29 N. Y. 303 ... 

Jansen v. Ostrander, 1 Cow. 670____ 

Johnson, Chicago v. 53 Ill. 91.. 

Johnson v. Joliet etc. R. R. Co., 23 Ill. 202.... 

Johnston, City of Peoria v. 56 111. 45 ... 

Judges of Cortland Co., People v. 24 Wend. 491 .. 

Keech v. The People, 22 Ill. 478.. 

Kelly v. Chicago, 48 Ill. 388.... 

Kemper, Town of Waltham v. 55 Ill. 346 .'. 

Kennedy, Corley v. 28 Ill. 143____ 

Kimball v. Yates, 14 Ill. 464 ... 

Kingman, The People v. 24 N. Y. 559.... 

Kingsbury, McFadden v. 11 Wend. 667... 

Kingston Mut. Ins. Co. v. Clark, 33 Barb. 196- :... 

Korah v. City of Ottawa, 32 Ill. 121.... 

Kost, Town of Pleasant v. 29 Ill. 490 .... 

Laflin, Chicago v. 49 Ill. 172----- 

Lambert, Davenpeck v. 44 Barb. N. Y. 596-- 

Lambier, The People v. 5 Denio 9.. 

Lansing, Earing v. 7 Wend. 185---- 

Earned, Chicago v. 34 Ill. 203.... 

Leech v. Waugh, 24 Ill. 229 —..... 

Leech, Waugh v. 28 Ill. 488---- 

Lequat v. The People, 11 Ill. 330.. 

Loomis, Barker v. 6 Hill 619 —-- 

Louk v. Woods, 15 Ill. 256 _____ 

Lovingston v. Wider, 53 Ill. 302----- 


51 

51 

. 13,39 
66 
26 

. 66,68 

. 154 

40 
66 

. 66 , 68 
71 
14 

. 154 

14,26 
66 

136, 141 


67 

109, 136 
37 
102 
83 
71 
52 
51 

. 154 

66 
13 
64 

. 154 

.39, 142 

153, 154 
27 
66 
30 
50 


Lyon, Rex v. 3 Dow. & R. 497 ... 

Mack v. Commissioners of Highways, 41 Ill. 378 

McAllister, Clavpole v. 20 Ill. 504-- 

McCann v. Day, 57 Ill. 101 .... ... 

McDonald v. Madison Co. 43 Ill. 22... 

McFadden v. Kingsbury, 11 Wend. 667 .. 

McGinn, Chicago v. 51 Ill. 266. 


13 

._ 141 
159,160 
.. 178 


re 9 


83 

14, 40, 160 












































X 


TABLE OE CASES. 


Madison Co., McDonald v. 43 Ill. 22... 52 

Marcy v. Taylor, 19 Ill. 034......39, 153, 154 

Marcy, Taylor v. 25 Ill. 518_____35, 37 

Marion Co. v. Harper, 44 Ill. 482 .-. 30 

Maynard, Dennis v. 15 Ill. 477...... 25 

Mayor of N. Y., Wilson v. 1 Denio 599.— 08 

Mayor of Rochester, Fish v. 6 Paige 272. 102 

Mayor of Troy, Wendell v. 39 Barb, 329. 08 

Menard, Betts v. Breese App. 10__—. 158 

Middleton, Hunter v. 13 Ill. 50..... 13, 39 

Mills v. Brown, 2 Scam. 549......- 158 

Mills v. County Commissioners, 3 Scam. 53. 158 

Mills v. County of St. Clair, 2 (rilm. 197_ 158 

Moffatt, Town of Winfield v. 42 Ill. 47...— 139 

Mohawk, etc. v. Artclier, 0 Paige 83..... 118 

Morey v. Newfane, 8 Barb. 045_ 08 

Morgan, Champlin v. 20 Ill. 181 .... 20 

Moses v. P., Ft. W. & C. R. R. Co., 21 Ill. 522_ 15 

Mott, Fowler v. 19 Barb. 204.... 13 

Nance v. Howard, Breese 183____ 51 

Nealy v. Brown Co. Commissioners, 1 Gilm. 10_ 13, 25 

Nesbitt v. Trumbo, 39 Ill. 110____30, 154, 178 

Nevins v. City of Peoria, 41 Ill. 502 .. 15 

Newfane, Morey v. 8 Barb. 045.... 08 

Nichols, Grube v. 30 Ill. 92..... 15, 20 

Norton v. Studley, 17 Ill. 550 ___ 37 

Oakes, Green v. 17 Ill. 249 ____ 153 

Ostrander, Jansen v. 1 Cow. 070 _____ 71 

Oswego etc. Plank Road Co., Ireland v. 13 N. Y. 531_ 00 

Otis, Graves v. 2 Hill 470 ...... 102 

Page, City of Lacon v. 48 Ill. 499.. 40 

Parrington, Coombs v. 42 Me. 332_ 05 

Pearce v. Town of Gilmer, 54 Ill. 25 ...27, 38 

People, Commissioners of Highways v. 38 Ill. 347.. 15, 27 

People v. Commissioners of Highways, 52 Ill. 498. 14 

People v. Commissioners of Hudson, 7 Wend. 474 _ 00 

People v. Corporation of Albany, 11 Wend. 539_ 08 

People, Craig v. 47 Ill. 487 _14, 39, 40 

People, Daniels v. 21 Ill. 439 ___20, 154 

People, Dimon v. 17 111.410...15, 20, 153 

People, Eyman v. 1 Gilm. 4_____13, 25 

People v. Fredericks, 48 Barb. 173_____ 90 

People, Hiner v. 34 Ill. 297.. ... 15 













































TABLE OF CASES. 


XI 


People v. Judges of Courtland Co., 24 Wend. 491_ 66 

People, Keecli v. 22 Ill. 478..136, 141 

People v. Kingman, 24 N. Y. 559.. 102 

People v. Lambier, 5 Denio 9.... 13 

People, Lequat v. 11 111. 330 .. 27 

People v. Smith, 15 Ill. 326_______ 136 

People v. Supervisors of Niagara, 4 Hill 20._. 90 

People, Sweeney v. 28 Ill. 208....... 38 

People v. Taylor, 34 Barb. 481_.. 118 

People v. Vermilion Co., 47 Ill. 256 .... 109 

People v. Williams, 36 N. Y. 441.. 68, 74 

People v. Williams, 51 Ill. 63.... 154 

Peoria Bridge Ass. Ill. Riv. Packet Co. v. 38 Ill. 467. 40 

Peoria Co. v. Harvey, 18 Ill. 364.... 142 

Pitstick, Tower v. 55 Ill. 117____67, 111, 112 

Plummer v. Sturtevant, 32 Me. 325... 102 

Proctor, Town of Lewiston v. 27 Ill. 414.__14, 26, 39 

Radcliff v. Brooklyn, 4 N. Y. 203 .... 102 

Radway v. Briggs, 37 N. Y. 256 ____ 13 

Railroad Co. v. Black, 58 Ill. 33_ 170 

Railroad Co., Ill. Cen. v. City of Galena, 40 Ill. 344.. 39 

Railroad Co., Joliet etc., Johnson v. 23 Ill. 202. 154 

Railroad Co., N. Y. Cent., Brace v. 27 N. Y. 269. 13 

Railroad Co., P. Ft. W. & C., Moses v. 21 Ill. 522_ 15 

Railroad Co., T. P. & W. v. Town of Clienoa, 43 Ill. 209_ 39 

Reed, Aurora v. 58 Ill. 29...151, 152 

Rees v. Chicago, 38 Ill. 322 .153, 154 

Rex v. County of Salop, 13 East. 95... 13 

Rex v. Lyon, 3 Dow. & R. 497.. 13 

Robinson v. Chamberlain, 34 N. Y. 380. 68 

St. Clair Drain Co., llarward v. 51 Ill. 130...50, 154 

St. Clair Co. Mills v. 2 Gilm. 197 ...... 158 

Sawyer v. City of Alton, 3 Scam. 127..... 51 

Schenck, Dygert v. 23 Wend. 446.. 66 

Sclilader, Trickey v. 52 Ill. 78. 27 

Scripture, Sullivan v. 3 Allen 564 .... 65 

Smith v. Smith, 2 Pick. 621. 65 

Smith, The People v. 15 Ill. 326..... 136 

Smith v. Wright, 24 Barb. 170.... 68 

Soule, Gentleman v. 32 Ill. 271..14, 15, 154 

Stephani v. Brown, 40 Ill. 428... 39 

Stookey, City of Belleville v. 33 Ill. 441... 13 

Studley, Norton v. 17 Ill. 556.. 37 











































xn 


table of cases. 


Sturtevant, Plummer v. 32 Me. 325.. 102 

Sullivan v. Scripture, 3 Allen 564.... 65 

Supervisors of, etc. Commissioners of Sonora v. 27 Ill. 141.. 136 

Supervisors, Commissioners of Highways v. 53 Ill. 320 - 133 

Supervisors of Niagara, The People v. 4 Hill 20_ 90 

Sweeney v. The People, 28 111. 208 ..... 38 

Talmage v. Hunting, 29 N. Y. 447 .... 66 

Tanner, Beyer v. 29 Ill. 135.... 35 

Tatman, Trustees v. 13 Ill. 27..... 158 

Taylor, Marcy v. 19 111. 634...39, 153, 154 

Taylor v. Marcy, 25 Ill. 518....... 35, 37 

Taylor, The People v. 34 Barb. 481... 118 

Teft, Guptail v. 16 Ill. 365_____ 35 

Thurber, Colden v. 2 Johns. 424____ 66 

Todemier v. Aspinwall, 43 III. 401__ 27 

Tower v. Pitstick, 55 Ill. 118.......67, 111, 112 

Town v. Town of Blackberry, 29 Ill. 137___34, 112 

Town of Blackberry, Town v. 29 Ill. 137..._34, 112 

Town of Clienoa, T. P. & W. R. R, Co. v. 43 Ill. 209_ 39 

Town of Eagle, Clifford v. 35 Ill. 444 _ 27 

Town of Galena v. Clyde, 27 Barb. 543... 68 

Town of Gilmer, Pearce v. 54 Ill. 25_27, 38 

Town of Jacksonville, Warren v. 15 Ill. 236 ......153, 154 

Town of Lewiston v. Proctor, 27 Ill. 414__14, 26, 39 

Town of Pleasant v. Ivost, 29 Ill. 490. 51 

Town of Steuben, Bussell v. 57 Ill. 35. 67 

Town of Vinegar Hill v. Busson, 42 Ill. 45. 15 

Town of Waltham v. Kemper, 55 Ill. 346 . 67 

Town of Winfield v. Moffatt, 42 Ill. 47. 139 

Trickey v. Sclilader, 52 Ill. 78___ 27 

Trumbo, Nesbitt v. 39 Ill. 110...30, 154, 178 

Trustees v. Tatman, 13 Ill. 27___ 158 

Trustees of Brockport, West v. 16 N. Y. 161.. 68 

Trustees of Ithaca, Conrad v. 16 N. Y. 158_ 68 

Trustees etc. of Mt. Sterling, Dunlap v. 14 Ill. 251 _ 142 

Trustees of Plattsburgh, Hick ok v. 16 N. Y. 161 ... 68 

Trustees of Rondout, Hyatt v. 44 Barb. 391.... 66, 68 

Verley, City of Joliet v. 35 Ill. 58_40, 46 

Vermilion Co. The People v. 47 Ill. 256 .. 109 

Walker v. Cay wood, 31 N. Y. 51____ 66 

Ward, Ferris v. 4 Gilm. 499 .....26, 36, 38 

Warne v. Baker, 24 Ill. 351 .. 141 

Warne v. Baker, 35 Ill. 382 . 104 











































TABLE OF OASES. xiii 

Warren v. Town of Jacksonville, 15 111. 236 _153, 154 

Waterman, Gray v. 40 111. 523____ 39 

Waugh, Leech v. 24 Ill. 229 ...39, 142 

Waugh v. Leech, 28 111.488...153, 154 

Wayde v. Carr, 2 Dow. & Ry. 255_ 8 

Wells v. Hicks, 27 Ill. 345___108, 109, 112, 133 

Wendell v. Mayor of Troy, 39 Barb. 329 __ 68 

West v. Trustees of Brockport, 16 N. Y. 161.. 68 

White Administrator v. County of Bond, 58 Ill.. 67 

Wider, Lovingston v. 53 Ill. 302__50 

Wilcox, Clatiin v. 18 Yt. 605 ..J_ 65 

Williams v. The People, 36 N. Y. 441__ 68, 74 

Williams, The People v. 51 Ill. 63_ 154 

Wilson v. Mayor of N. Y. 1 Denio 599___ 68 

Winkler v. Winkler, 40 Ill. 179_ 30 

Woods, Louk v. 15 Ill. 256 - 30 

Woodward, Dartmouth College v. 4 Wheat. 518_ 168 

Worrall, Burdick v. 4 Barb. 596- 64 

Wright, Hunsaker v. 30 Ill. 146__—.. 51 

Wright, Smith v. 24 Barb. 170..... 68 

Yates, Kimball v. 14 111.464___ 37 




































































































































I 



















r 'W-~ 






THE HIGHWAY SYSTEM. 


Introduction — Highways Generally. 

Roads and Bridges in Counties under Primary Organiza¬ 
tion. 

Roads and Bridges in Counties under Township Organiza¬ 
tion. 

Streets and Alleys. 

Rivers and Ferries. 

Railways and Canals. 

Turnpikes, Toll-bridges and Plank Roads. 

Private Ways. 


SECTION I. 

INTRODUCTION —HIGHWAYS GENERALLY. 

1. Defined, kinds of ways. 

2. Their creation. 

1. By legislative authority. 

2. By dedication, user. 

3. By necessity. 

3. Their nature, easements or servitudes. 

4. Their establishment, maintenance, repairs. 

5 Obstructions, nuisances. 

6. Scope of the subject. 

1. A highway is a passage, road or street which every 
citizen has a right to use. 1 2 The term highway is the 
generic name for all kinds of public ways, whether 
they be carriage-ways, bridle-ways, foot-ways, bridges, 
turnpike roads, railroads, canals, ferries, or navigable 
rivers. 8 

2. Highways are created either (1) by legislative 
authority, (2) by dedication, or (3) by necessity. 
(1) By legislative authority. In England, the laying 


Section I. 
II. 

III. 

IV. 
V. 

VI. 

vti. 

VIII. 


1 1 Bouvier, Inst. n. 442; 3 Kent, Com. 432; 3 Yeates, Penn. 421. 

2 6 Mod. 255; Angell, Highw. c. 1. 

1 



2 


THE HIGHWAY SYSTEM. 


[Sec. I. 


out of highways is regulated by act of parliament; in 
this country, by general statutes, differing in different 
states. In England, the uniform practice is to provide 
a compensation to the owner of the land taken for 
highways. In the act authorizing the taking, in the 
United States, such a provision must he made, or the 
act will be void under the clause in the several state 
constitutions that “ private property shall not be taken 
for public use without just compensation.” The 
amount of such compensation may be determined 
either by a jury or by commissioners, as shall be pre¬ 
scribed by law. 1 In case the statute make no provi¬ 
sion for indemnity for land to be taken, an injunction 
may be obtained to prevent the taking, 2 or an action at 
law may be maintained after the damage has been com¬ 
mitted. 3 (2) Bij dedication. This consists of two 
things: first, on the part of the owner of the fee, an 
appropriation of land to be used by the public, gen¬ 
erally, as a common way; second, on the part of the 
public, an acceptance of the land, so appropriated, for 
such use. Against the owner, dedication may be 
proved by his express declaration, whether by deed or 
by parol, or by any act unequivocally evincing his in¬ 
tention to dedicate, as by his opening a way for the 
public over his land, or it may be implied from his 
acquiescence in the use of his land for a public way. 
Where acquiescence is the only evidence of dedication, 
it must ordinarily have continued for twenty years; 
though any shorter period will suffice, if such acqui¬ 
escence cannot reasonably be accounted for except upon 
the supposition of an intent to dedicate. In all cases 

1 1 Blackstone, Com. 139; Angell, Highw. c. 2; 8 Price, Exch. 535; 12 
Mass. 466; 18 Pick. Mass. 501; 2 Johns. Ch. N. Y. 162; 12 Barb. N. Y. 227; 25 
Wend. N. Y. 462; 21 N. H. 358; 1 Baldw. C. C. 222; 3 Watts, Penn. 292. 

2 3 Paige, Ch. N. Y. 45; 2 Johns. Ch. N. Y. 162. 

3 5 Cow. N. Y. 165; 16 Conn. 98. 


Sec. I.] 


HIGHWAYS GENERALLY. 


3 


the intent to dedicate—the animus dedicandi —is the 
indispensable ingredient of the proof against the owner 
of the fee. The Supreme Court of Illinois has re¬ 
peatedly said, upon the question of dedication, that 
in order to justify the holding that title has been di¬ 
vested by dedication, the proof must be clear, either of 
an actual intent so to do, or of such acts or declarations 
as will equitably estop the owner from denying such 
intention. 1 There may be a dedication to the public 
for a limited purpose, as for a foot-way, liorse-way or 
drift-way, but not to a limited part of the public; and 
such partial dedication will be merely void. 2 The 
proper proof of an acceptance is the use of the way by 
the public generally, 3 but it has been held in some 
states that an acceptance, to be effectual, must be made 
by the body chargeable with the duty of repairing. 4 * 
(3) By necessity. If a highway be impassable, from 
being out of repair or otherwise, the public have a 
right to pass in another line, and, for this purpose, to 
go on the adjoining ground; and it makes no differ¬ 
ence whether it be sown with grain or not. 6 

3. A highway is simply an easement or servitude, 
carrying with it, as its incidents, the right to use the 
soil for the purposes of repair and improvement; and, 
in cities, for the more general purposes of sewerage, 
the distribution of light and water, and the furtherance 
of public morality, health, trade and convenience. 
The owner of the land over which it passes retains 
the fee and all rights of property not incompatible 

1 Kelly v. Chicago, 48 Ill. 388; Angell, Highw. c. 3; 3 Kent, Com. 451; 5 
Taunt. 125; 30 Eng. L. & Eq. 207; 11 East 375; 11 Mees. & W. Exch. 827; 0 
Pet. 431; 19 Pick. Mass. 405; 5 Watts & S. Penn. 141. 

2 11 Mees. & W. Exch. 827; 8 Cush. Mass. 195. 

3 5 Barnew. & Akl. 409; 1 R. I. 93. 

4 13 Vt. 424; 6 N. Y. 257; 16 Barb. N. Y. 251; 8 Gratt. Va. 632; 2 Ind. 147. 

6 1 Ld. Raym. 725; Croke, Car. 366; 1 Rolle, Abr. 390 a; 7 Cush. Mass. 408; 

Yelv. 142, n. 1. 


4 


THE HIGHWAY SYSTEM. 


[Sec. I. 


with the public enjoyment, such as the right to the 
herbage, the trees and fruit growing thereon, or min¬ 
erals below, and may work a mine, sink a drain or 
cellar, or carry water in pipes beneath it. 1 He may 
maintain ejectment for encroachments thereon, or an 
assize if disseised of it, 2 or trespass against one who 
builds on it, 3 or who digs up and removes the soil, 4 
or cuts down trees growing thereon, 5 * or who stops 
upon it for the purpose of using abusive or insulting 
language. 0 If a railroad be laid upon a highway, 
even though laid by legislative authority, the owner 
of the fee is entitled to compensation for the additional 
servitude. 7 The owners on the opposite sides prima 
facie own respectively to the centre of the highway ; 8 
and a grant of land bounded “ by,” or “ on,” or 
“along” a highway carries, by presumption, the fee 
to the centre, if the grantor own so far; though this 
presumption may be rebutted by words showing an 
intention to exclude the highway, such as, “ by the 
side of,” “ by the margin of,” or a by the line of” the 
highway, or other equivalent expression. 9 Whenever 
the highway is abandoned or lost, the owner of the 
soil recovers his original unincumbered dominion. 10 

4. In England, the inhabitants of the several par¬ 
ishes are prima facie bound to repair all highways 


1 4 Viner, Abr. 502; Comyns, Dig. Chemin (A 2); Angell, Ilighw. c. 7; 
1 Burr. 133; 1 N. II. 16; 1 Sumn. C. C. 21; 3 Rawle, Penn. 495; 10 Pet. 25; 
6 Mass. 454; 15 Johns. N. Y. 447. 

2 3 Kent, Com. 432; Adams, Eject. 19; 9 Scrg. & R. Penn. 20; 1 Conn. 
135; 2Smith, Lead. Cas. 141. 

3 2 Johns. N. Y. 357. 4 12 Wend. N. Y. 98. 

6 1 N. II. 16. *11 Barb. N. Y. 390. 

7 2 E. D. Smith, N. Y. 97; 3 Hill, N. Y. 567; 4 Zabr. N. J. 592; 16 Miss. 649. 

8 Angell, Highw. § 313. 

9 3 Kent, Com. 433; Angell, Highw. §315; 11 Me. 463; 4 Day, Conn. 228; 

13 N. II. 381; 8 Mete. Mass. 266; 2 R. I. 508; 2 Sanf. N. Y. 234 ; 2 Whart. 

Penn. 18. 

10 Angell, Highw.; 4 Mass. 429; 6 Pet. 498, 513; 8 Watts, Penn. 172; 15 
Johns. N. Y. 447. 




Sec. I.] 


l 


HIGHWAYS GENEBALLY. 


5 


lying within them, unless by prescription or otherwise 
they can throw the burden upon particular persons. 1 
In this country, the English parochial system being 
unknown, this feature of the common law does not 
prevail. The liability to repair is here determined by 
statute, and, in most of the states, devolves upon the 
towns. 2 The liability being thus created, its measure 
is likewise to be ascertained by statute, the criterion 
being, generally, safety and convenience for travel, 
having reference to the natural characteristics of the 
road and the public needs. 3 For neglect to repair, the 
parish in England, and in this country the town or 
body chargeable, is indictable as for a nuisance, 4 and, 
in many states, is made liable, by statute, to an action 
on the case for damages in favor of any person who 
may have suffered special injury by reason of such 
neglect. 5 * The duty of repair may, in this country, 
rest on an individual to the exclusion of the town, 0 or 
on a corporation who, in pursuance of their charter, 
build a road, and levy tolls for the expense of main¬ 
taining it. 7 The taking of toll is jprima facie evidence 
of the duty. 8 

5. Any act or obstruction which unnecessarily incom¬ 
modes or impedes the lawful use of a highway by the 
public, is a common-law nuisance, 9 and may be abated 
by any one whose passage is thereby obstructed ; 10 or 
the person causing or maintaining the same may be 

1 Shclford, Highw. 44; 1 Hawkins, PI. Cr. 76; 5 Burr. 1700; 12 Mod. 409 

2 8 Barb. N. Y. 645; 13 Pick. Mass. 343; 1 Humphr. Tenn. 217. 

3 Angell, Highw. § 259 ; 2 Woodb. & M. C. C. 337; 19 Vt. 470; 4 Cush. Maes. 
307, 365; 14 Me. 198. 

4 2 Wins. Saund. 158. n. 4; 3 Term, 265 ; 28 N. II. 195; Angell, Highw. § 275. 

6 17 How. 161; 3 Cush. Mass. 174; 22 Penn. St. 381; 31 Me. 299; Angell, 

Highw. § 286. 

B 23 Wend. N. Y. 446. 7 7 Conn 86. 

s 1 Hawks, N. C. 451. 

9 4 Stephen, Com. 294; 1 Hawkins, PI. Cr. c. 76; Angell, Highw. § 345 

Angell, Highw. § 274 ; 3 Stephen, Com. 5; 5 Coke 101. 


6 


THE HIGHWAY SYSTEM. 


[Sec. I. 


indicted, 1 or may be sued for damages in an action on 
the case by any one specially injured thereby. 2 

It is the duty of travelers upon highways, for the 
purpose of avoiding collision and accident, to observe 
due care in accommodating themselves to each other. 
To subserve this purpose, it is the rule in England 
that, in meeting, each party shall bear or keep to the 
left; and in this country the reverse—that is, to the 
right. 3 This rule, however, may and ought to be 
varied, where its observance would defeat its purpose. 4 
The rule does not apply to equestrians and foot-passen¬ 
gers. 5 It is another rule that travelers shall drive 
only at a moderate rate of speed, furious driving on a 
thronged thoroughfare being an indictable offense at 
common law. 6 In case of injury by reason of the 
non-observance of these rules or of other negligence, 
as by the use of unsuitable carriages or harness, or 
horses imperfectly trained, the injured party is en¬ 
titled to recover his damages in an action on the case 
against the culpable party, unless the injury be in 
part attributable to his own neglect. 7 

6. The location, establishment, alteration, mainten¬ 
ance and use of highways, so as to familiarize the 
public officer and elector with forms and procedure 
in such matters, is the scope of the subject immedi¬ 
ately before us. Legislation, judicial decision, and 
custom and practice in Illinois, have established a 

1 1 Hawkins, PI. Cr. c. 76; 2 Sauntl. 158, 159, note; 7 Hill, N. Y. 575; 13 
Mete. Mass. 115. 

2 Coke, Litt. 56 a; 2 Bingh. 263; 1 Binn. Penn. 463; 7 Cow. N. Y. 609; 19 
Pick. Mass. 147; Angell, Highw. § 285 et seq. 

3 2 Stephen, Nisi P. 984; Story, Bailm. § 599; 2 Dowl. & R. 255. 

4 8 Carr. & P. 103; 12 Mete. Mass. 415; 23 Penn. St. 196. 

5 24 Wend. N. Y. 465; 2 D.-Chipm. Vt. 128; 8 Carr. & P. 373, 691. 

6 1 Pet. 590; 13 id. 181; 8 Carr. & P. 694. 

7 Angell, Highw. et seq .; 2 Taunt. 314; 1 Pick. Mass. 345; 11 East 60; 
15 Conn. 359; .5 Watts & S. Penn. 544 ; 5 Carr. & P. 379; 6 Cow. N. Y. 191; 19 
Wend. N. Y. 399. 


Sec. II.] 


UNDER PRIMARY ORGANIZATION. 


? 

system essentially the same throughout the state as 
a whole, but differing materially in details relative to 
roads and bridges. From the first settlement of the 
territory to 1849, with the primary organization of the 
county came and have been developed the laws which 
pertain to roads and bridges in the state, now known 
as the act of April 18, 1873, 1 substantially a revi¬ 
sion of chapter 93 of the Revised Statutes of 1845. In 
1849, with the township system of county government, 
came the machinery relative to highways which had 
been devised in the state of Hew York. We not only 
adopted the statutes of that state, but, according to a 
familiar rule, their interpretation. Therefore, in coun¬ 
ties still under the primary organization, the laws of 
1845 and our own reports, with the common law, 
furnish the rules of action, while in counties under 
township organization we have to look also at the 
legislation and judicial decisions in New York, appli¬ 
cable to such a system. Hence, in the first place, 
we shall consider our own laws and reports, and then 
the laws and reports of the Empire State, in so far as 
they relate to roads and bridges as we find them sub¬ 
stantially embodied in the act of April 11, 1873. 2 


SECTION II. 

ROADS AND BRIDGES IN COUNTIES UNDER PRIMARY ORGANI¬ 
ZATION. 

I. Tiie Road, Common Carriers, etc. 

II. Highways, New Roads, Location and Relocation. 

III. The County Court, or the Board op County Commissioners (Art. 10, 

§ 0, Const. 1870) —Jurisdiction; Supervisors (of Roads). 

IV. Suits for Road Labor and Road Taxes. 

V. Miscellaneous Provisions. 

VI. The Board of County Commissioners invested with County Court 
Jurisdiction in such matters; Repeal, etc. 

1 An act in regard to gateways, roads and bridges in counties not under 
township organization. Laws 1873, Myers’ Ed. p. 59. 

2 An act in regard to roads and bridges in counties under township organi¬ 
zation, approved and in force April 18, 1873. Laws 1873, Myers’ Ed. p. 30. 



8 


THE HIGHWAY SYSTEM. 


[Sec. II. 


I. The Road, Common Carriers, etc. 

1. Turn to the right, if practicable. 

2. Intemperate or drunken drivers not to be employed. 

3. Driver guilty of becoming intoxicated on duty, to be discharged; pas¬ 
senger may, by complaint verified by oath to the proprietor, cause the dis¬ 
charge. 

4. Running horses or carriage on any occasion prohibited; a misdemeanor; 
penalty prescribed. 

5. Horses to be securely hitched with a sufficient rope or halter. 

6. Carriers liable for injuries in damages. 

7. “Carriage” defined — any vehicle used for the transportation of either 
passengers or goods. 

8. This act not to affect hackney coaches in cities, nor ordinances relating 
to them. 


1. Whenever any persons, traveling with any car¬ 
riages shall meet on any turnpike, road or public highway 
in this state, the persons so meeting shall seasonably turn 
their carriages to the right of the center of the road so 
as to permit each carriage to pass without interfering 
or interrupting, under the penalty of five dollars for 
every neglect or offense, to he recovered by the party 
injured: Provided , this section shall not be construed 
to apply to any case, unless some injury to persons or 
property shall occur by the driver of the carriage or 
wagon refusing to turn to the right of the beaten 
track ; nor shall it be construed to extend to a case 
where it is impracticable, from the nature of the 
ground, for the driver of the carriage or wagon to 
turn to the right of the beaten track. 1 


1 § 1. An act in regard to gateways, roads and bridges, in counties not 
under township organization, approved April 18, 1873. § 1, R. S. 1845, p. 480; 
Wayde v. Carr, 2 Dow & Ry. 255; Angell, Highways, § 328 - 340; Angell, 
Carriers, § 549; see J. & C., Fines. 

The curious observer of the growth and development of anew state, from 
the native wilds of the untutored savage to the homes of teeming millions of 
a dominant people, would find in the special and general legislation of the 
General Assembly of Illinois relative to “ roads,” abundant food for contem¬ 
plation and inquiry. Commencing with the organization of the state, going 
back only fifty-four years, we come to the act of March 29, 1819, for repairing, 
improving and regulating roads, from which we may trace the general laws 
until they are codified and form chapter 93 of the R. S. 1845. The act of April 
18, 1873, in many particulars, is almost a literal transcript from this chapter. 

But by far the greater number of acts from 1819 -1870 have been what are 


Sec II.] 


UNDER PRIMARY ORGANIZATION. 


9 


2. No person owning any carriage running or travel¬ 
ing upon any road in this state, for the conveyance of 
passengers, shall employ, or continue in employment, 
any person to drive such carriage, who is addicted to 
drunkenness, or the excessive use of spirituous liquors; 
and if any such owner shall violate the provisions of 
this section after he shall have had notice and reason¬ 
able proof that sncli driver is addicted to drunkenness, 
he shall forfeit at the rate of live dollars per day for all 
the time during which he shall thereafter have kept 
any sncli driver in his employment, to be sued for by 
any person, and collected in any court having compe¬ 
tent jurisdiction; and the court may allow a portion of 
said penalty, not exceeding twenty-five dollars, to be 
retained by such complainant, as a compensation for his 
services and expenses ; the balance to be paid into the 
county treasury. 1 

3. If any driver, while actually employed in driving 
any such carriage, shall be guilty of intoxication, to 
such a degree as to endanger the safety of the passen¬ 
gers in the carriage, it shall be the duty of the owner 
of such carriage, on receiving written notice of the fact, 
signed by any one of said passengers, and certified by 
him on oath, forthwith to discharge such driver from 
his employment; and every such owner who shall re¬ 
tain, or have in his employ, within thirty days after the 


termed local acts. Every session of the General Assembly seems to have vied 
with every preceding session for excelling in the number of road laws for 
particular localities — see preface R. S. 1845. But the constitution of 1870 
(§20, art. 4) t inhibits the General Assembly from passing local or special laws 
inter alia , for “laying out, opening, altering and workingroads or highways; 
vacating roads, town plats, streets, alleys and public grounds.” The acts of 
1873, contained in this volume, repeal all former conflicting acts, giving a 
clear, plain and concise law of highways for either the primary or the town¬ 
ship system of county government. These acts interfere with no local act, 
nor established road which has been used within five years. 

§ 9, act Apl. 18, 1873. 

1 § 2, id. See § 2 R. S. 1845, p. 480. See J. & C., qui tarn actions 


10 


THE HIGHWAY SYSTEM. 


[Sec. II. 


receipt of such notice, any driver who shall have been 
so intoxicated, shall forfeit at the rate of five dollars 
per day for the time during which he shall keep any 
such driver in his employment after receiving such no¬ 
tice, to he sued for and applied as directed in section 
two (2) of this act. 1 

4. No person driving any carriage upon any turnpike, 
road or public highway within this state, with or with¬ 
out passengers therein, shall run his horses or carriage, 
or permit the same to run, upon any occasion, or for 
any purpose whatever, except in case of necessity ; and 
every person who shall offend against the provisions of 
this section, shall be deemed guilty of a misdemeanor, 
and, on conviction thereof, shall he fined not exceeding 
one hundred dollars, or imprisoned not exceeding sixty 
days, at the discretion of the court. 2 3 

5. It shall not he lawful for the driver of any can iage, 
used for the purpose of conveying passengers for hire, 
to leave the horses attached thereto, while passengers 
remain therein, without making such horses fast with 
a sufficient halter, rope or chain, or by placing the lines 
in the hands of some other person, so as to prevent their 
running ; and if any such driver shall offend against the 
provisions of this section, he shall forfeit the sum of 
twenty dollars, to be recovered by action, to he com¬ 
menced within six months; and unless the amount of 
such recovery be paid forthwith, execution shall be im¬ 
mediately issued therefor. 8 

6. The owners of every carriage running upon any 
turnpike, road or public highway for the conveyance of 
passengers, shall he liable, jointly or severally, to the 
party injured, in all cases, for all injuries or damages 

1 § 3, act April 18. 1873. See J. & C., Fines. 

2 § 4, id. See J. &. C., Crim. Juris. 

3 § 5, id. See J . & C., Fines. 


Sec. II.] 


UNDER PRIMARY ORGANIZATION. 


11 


clone by any person in the employment of such owners 
as a driver, while driving such carriage, to any person 
or to the property of any person, and that, whenever 
the act occasioning such injury, or damage, he willful, 
negligent or otherwise, in the same manner as such 
driver would be liable. Any driver of any mail stage 
coach, or any other vehicle for the conveyance of pas¬ 
sengers, willfully offending against the provisions of 
this act, shall be deemed guilty of a misdemeanor, and 
on conviction thereof, shall be fined not exceeding 
three hundred dollars, or imprisoned not exceeding 
four months. 1 

7. The term “ carriage,” as used in this act, shall be 
construed to include stage coaches, wagons, carts, 
sleighs, sleds and every other carriage or vehicle used 
for the transportation of passengers or goods, or either 
of them. 3 

8. Nothing contained in this act shall interfere with 
or affect any law concerning hackney coaches or carriages 
in any of the cities of this state, nor interfere with nor 
affect the laws or ordinances of any such city, for the 
licensing or regulating such coaches or carriages. Jus¬ 
tices of the peace shall have jurisdiction in all cases 
arising under this act, where the penalty does not ex¬ 
ceed two hundred dollars. 3 

II. Highways, Roads, New Roads, Location and Relocation. 

9. Roads laid out pursuant to law, not vacated and if used, within five 
years, declared highways. 

10. Petition of at least thirty-five voters (except in counties of less than 

1 § 6, act April 18, 1873. 

Collision. — In an action brought by the owner of one vehicle against 
the owner of another, for damages resulting from a collision, if the defendant 
has been guilty of negligence and the plaintiff has shown all the care and skill 
which can be expected from men of ordinary prudence in like circumstances, 
he is entitled to recover. 

Coursen v. Ely, 37 Ill. 388. 

2 § 7, act of April 18, 1873. See J. & C., Fines. 

3 § 8, id. 


12 


THE HIGHWAY SYSTEM. 


[Sec. II. 


three hundred voters, when fifteen shall be enough,) to the county court neces¬ 
sary to inaugurate the opening of anew road; applicants to deposit money 
to pay for viewing, to be refunded if the road be recommended by viewers. 

11. The county court to inquire as to the getting up of the petition, con¬ 
cerning the signers and their interest in the road, and if notice of the appli¬ 
cation has been given. 

12. The court to pass on the merits of the application, and if of the opinion 
that the public good and convenience require it, shall appoint three disinter¬ 
ested viewers, who, if they also be of the same opinion, shall proceed to 
locate the road — procedure prescribed — and make the report, if they deem 
the road unnecessary. 

14. Proceeding to vacate a useless or burdensome road prescribed; the 
petition, the notice, deposit for costs, etc. 

15. Opening a new road, how it shall be accomplished. 

16. Cart road, how to be obtained for private use. 

17. Petition for change, relocation, and proceeding prior and subsequent 
to the same. 

18. Roads on county lines; joint proceedings prescribed for laying out a 
new road or changing location, or vacating a road on such lines. 

19. Remonstrances may be presented and considered, with the authorized 
applications for or concerning roads, to the county court. 

20. Surveys of roads to be made, plats returned, with the report of the 
viewers, and a record made. 

21. The viewers to be sworn; their duties generally. 

22. County surveyors may act without further qualification, and admin¬ 
ister oaths to associates. 

23. Persons and corporations over whose lands roads pass, may object if 
they cannot agree with the county authorities as to damages, whereupon the 
county court is to call a jury of six freeholders to view and assess; appeal 
may be taken to the circuit court, whose decision is to be final; procedure 
prescribed. 

24. Obstructing highways or private road, injuring guide boards, mile¬ 
stones, etc.; penalties prescribed. 

25. Complaint or information of any such offense cognizable by any jus¬ 
tice of the peace of the county. 

26. Flooding highways or private roads prohibited; penalties. 

27. Driving, riding, etc., on or across a bridge faster than a walk, an offense; 
penalty for each offense, five dollars ; procedure, indictment on complaint or 
information. 


9. All roads within this state, which have been laid 
out in pursuance of any law of this state, or of the late 
territory of Illinois, and which have not been vacated 
in pursuance of law, are hereby declared to be public 
highways: Provided , that all roads that have not been 
used within five years shall be deemed vacated. 1 


1 § 9, act of April 18, 1873. 

A highway is a right of passage for the public in general, without distinc¬ 
tion, The term “ highway,” at common law, extends to all public ways, and 


Sec. II.] UNDER PRIMARY ORGANIZATION. 


13 


10. Xo new road shall be opened by order of the 
county court, unless the same shall be applied for by at 
least thirty-five voters residing within five miles of the 
road proposed to be laid out or altered, except in coun¬ 
ties which shall not have more than three hundred 


includes carriageways, horseways, footways, streets, turnpike and plank 
roads, railroads, ferries, canals and navigable rivers. They arc distinguished 
from each other only by the mode of their use, the material of which they are 
composed, or by the manner in which the costs of construction and mainten¬ 
ance arc defrayed. Public piers or landing places are highways. Radway v. 
Briggs, 37 N. Y. 256; People v. Lambier, 5 Denio 9; Fowler v. Mott, 19 Barb. 
204. So are public squares, parks, etc. In the statute the word “road” is 
made synonymous with “ highway.” 

Brace v. N. Y. Central R. R. Co., 27 N. Y. 269. 

The size of the way is immaterial; a public footway or bridleway is a high¬ 
way for foot passengers or horse passengers. 

Rex v. County of Salop, 13 East 95. 

And a public carriageway is not restrained, because all carriages cannot pass 
and rcpass. 

Rex v. Lyon, 3 Dow & R. 497. 

Railways heretofore constructed or that may hereafter be constructed in 
this state are hereby declared public highways, and shall be free to ail per¬ 
sons for the transportation of their persons and property thereon, under such 
regulations as nicy be prescribed by law. And the General Assembly shall, 
from time to time, pass laws establishing reasonable maximum rates of 
charges for the transportation of passengers and freight on the different rail¬ 
roads in this state. 

Const. 1870, § 12, Art. 11. 

If a road be used and traveled by the public as a highway, and be recog¬ 
nized and kept in repair as such by the county authorities, proof of these facts 
furnishes a legal presumption liable to be rebutted, that it is a public highway. 

Eyman v. The People, 1 Gilm. 4; Nealy v. Brown, id. 10. 

Proof of. — It is not necessary to produce record evidence of a road.— Id. 

Parol evidence is admissible to show where a road is located. — Id. 

The recording of the plat of a toavn passes the fee in the streets 
to the corporation. If the town has not a corporate existence the fee remains 
in abeyance, subject to vest in the corporation the moment it is created. 

Canal Trustees v. Haven, 11 Ill. 554. Hunter v. Middleton, 13 Ill. 50. 

How established. — A highway may be established and proved by pre¬ 
scription, by dedication and by laying out the same as directed by statute. 

Alvord v. Ashley, 17111. 363. 

Cities and towns may acquire the title to streets and alleys by con¬ 
veyance, by dedication, by prescription and by platting and recording the 
town plat. But the ground for streets should be properly indicated on the 
town plats, and other requisitions of the statute should be complied with, to 
enable the city or town, and others, to enforce the opening of such streets and 
alleys. 

City of Belleville v. Stookey, 33 Ill. 441. 

By prescription. —A continuous and uninterrupted use of a highway by 
the public for more than twenty years creates a prescriptive right to the use 


14 


TIIE HIGHWAY SYSTEM. 


[Sec. II. 


voters, when only fifteen shall be required. Sncli 
applicants shall deposit in the hands of the clerk of the 
county court a sufficient sum of money to pay the 


of the road. And this right continues until it is clearly and unmistakably 
abandoned. 

The City of Peoria v. Johnston, 56 Ill. 45. 

Town of Lewiston v. Proctor, 27 Ill. 414, 

The fact that a village road has not been repaired by the corporate author¬ 
ities, may be evidence tending to show that the corporation does not regard 
it as a highway. This will not be the case, however, if it appear that from the 
nature of the ground the road has needed no repairs. 

Town of Lewiston V. Proctor, 27 Ill. 414. 

Sidewalks are a part op the street, and the city is liable for injuries 
occasioned by defects therein. 

City of Bloomington v. Bay., 42 Ill. 503. 

Plank roads, though different in construction and in the taking of tolls, 
are public highways, sub modo. 

Craig v. The People, 47 Ill. 487. 

And as to what is such an abandonment of a plank road by a company as 
to render it a common highway. 

Craig v. The People, 47 Ill. 487. 

Bridges are rut streets, or highways over water. The fee of such 
portion of the river as is measured by the width of the street of which the 
bridge forms a part, is in the corporation. This being so, it is competent for 
the corporation to devote such portion of the river to any use which, in the 
judgment of its authorities, shall be deemed most promotive of the public 
interests, subject only to the easement of navigation. 

City of Chicago v. McGinn, 51 Ill. 266. 

Upon the question op liability for negligence, it is immaterial whether 
a city has the fee in its public streets or only a possessory title. 

City of Chicago v. Johnson, 53 HI. 91. 

A neighborhood lane for the accommodation of a few persons, but upon 
which any could travel who might desire, having been in use twenty years, 
but not having been worked or noticed by the public authorities, cannot be 
forced upon a town as a public highway. 

The People V. Comm'rs of Highways, 52 Ill. 498. 

Travel may slightly deviate from the thread of a road which is being used, 
to avoid an obstruction, and still not change the road itself. But it is other¬ 
wise where the whole length of the road is abandoned for eight or nine years, 
and is not sufficiently traveled to prevent its becoming obstructed by the 
growth of weeds and brush. In such case there is not that continued user 
which is absolutely necessary to establish a prescriptive right. 

Gentleman v. Soule, 32 Ill. 271. 

Twenty years is the shortest time within which the public can acquire a 
prescriptive right to use a road. 

Gentleman v. Soule, 32 Ill. 271. 

Nor can the time during which various and distinct lines of travel have 
been used be so united as to make up the requisite time to establish a pre¬ 
scriptive right to any given single line of road. 

Gentleman v. Soule, 32 Ill. 271. 

In this case it was held that the mere survey and platting of a road by a 


Sec. II.] 


UNDER PRIMARY ORGANIZATION. 


15 


viewing. If the report of the persons appointed to 
view sncli road be in favor of establishing the road, 
the money so deposited shall be returned to the per¬ 
sons who deposited the same; but if the report be 
unfavorable, the expense of the view shall be paid out 
of the money so deposited. 1 


county surveyor, under the direction of highway commissioners, did not have 
the effect to establish it as a public highway, it having been designed only to 
ascertain the courses and distances of a road claimed to he already estab¬ 
lished, and leaving the proof of its existence precisely as it was before. Such 
proceeding had, however, the effect to estop the public from claiming that 
the road ran upon a different line from the survey. 

Gentleman v. Soule, 32 Ill. 271. 

The survey and plat op a public road is evidence of its location, but 
is not conclusive; but like the field notes of the government surveys, parol 
evidence may be received to show that the road was actually located differ¬ 
ently from the calls in the survey of the road. 

Iliner v. The People, 34 Ill. 297. 

How acquired by the public. —A public highway may be acquired by 
condemnation under the statute, by grant from the owner; and after twenty 
years’ user by the public a grant will be presumed, and by dedication to and 
acceptance by the public, which may be inferred from travel by the public, 
and repairs by the proper public authorities. 

Grube v. Nichols, 36 Ill. 92. 

For instructions in regard to acquiring a highway, held to be erroneous. 

Comm’rs v. Harper, 38 Ill. 104. 

For instructions held sufficient. 

Town of Vinegar Hill v. Busson, 42111. 45. 

Where the five years within which a public road is required by statute 
to be opened after it is laid out expires, pending litigation in respect to the 
establishing of the road, the time consumed in the litigation must net be esti¬ 
mated as a part of the five years. 

Comm’rs of Highways v. The People, 38 Ill. 347. 

The actual use and repairing of a highway is evidence of its acceptance for 
such purpose. 

Alvord v. Ashley, 17111. 363. Dimon v. The People, 17 Ill. 416. 

Steam as a motive power may be used along the streets of a city, by proper 
permission. 

Moses v. P. Ft. W. and C. R. R. Co., 21 Ill. 522. 

Grading and drainage of streets. — For what injuries to adjacent lots 
arising therefrom the city is liable. 

Nevins v. City of Peoria, 41 Ill. 502. 

For froperty partially taken for the use or convenience of a street, 
there must be due compensation given. 

Nevins v. City of Peoria, 41 Ill. 502. 

Private rights are never to be sacrificed to public convenience or 
necessity without full compensation. 

Nevins v. Peoria, 41 Ill. 502. 


1 § 10, act April 18, 1873. R. S. 1845, c. 93, § 17, p. 483; see § 22, infra. 


16 


THE HIGHWAY SYSTEM. 


[Sec. II. 


11. It shall be the duty of the county court, upon the 
presentation of the petition for the location or re-loca¬ 
tion of a road, to inquire into the manner in which the 
same was gotten up, if signed by individuals through 
whose lands the same may pass, as far as practicable, 
and require proof, and he satisfied that the notices 
required by law of such intended application have been 
given, in view that the owners of lands which may be 
damaged shall have notice thereof. 1 

12. When a new road shall be applied for, as aforesaid, 
the county court shall, if in their opinion the public 
good and convenience require it, appoint three disin¬ 
terested persons to view the ground proposed for the 
same; and if, after such view, the viewers shall believe 
the road applied for to be necessary, taking into con¬ 
sideration the expense of constructing the same, and its 
utility to the public, they shall proceed to locate and 
establish the same, on the nearest and most eligible 
route, from point to point given, having due regard to 
private property, causing the same to be surveyed, 
designating its course through prairies and improved 
land by fixing stakes in the ground, and through the 
timbered land by marking trees, and shall make report 
thereof to the next county court; but after the view, 
if they deem such road unnecessary or improper to be 
made, they shall report their opinion to that effect to 
the next term of said court. 2 

PETITION FOR NEW HOAD. 

All applications under this act after the election in 1873, and 
the qualification and organization of The Board of County Com- 

1 § 11, act April 18,1873. 

2 § 12, id. ; § 18 c. 93, R. S. 483. 

Under the act of 1835, entitled “An act concerning public roads,“an order 
of the county commissioners’ court was necessary, to lay out a new road. 

Dempsey v. Donnelly, 58 Til. 40. 

Without an o’-der the proceedings are absolutely void.— Id. 


SEC. II.] UNDER PRIMARY ORGANIZATION. 


17 


missioners, should be addressed “ To the Board of County Com¬ 
missioners, -County.” 


Road District 


State of Illinois,) 

-County. ) 

To the (County Court or) Board of County Commissioners of said County: 

The undersigned, qualified voters, residing within five miles of 
the route hereinafter mentioned and described for a road, do hereby 
petition you to cause to be laid out and opened a new road, of the 
width of four rods, as follows: Commencing at the 

in said road district, and running from thence in a 
direction on the most eligible route to 
The following are the names of the owners of lands over which 
the same is to pass : 

B A, C A, L M, etc. (and unknown owners.*) 

And your petitioners pray that the said road be laid out and 
opened according to law, substantially as described. 

Dated at this day of 18 . 

Names.—A B, etc. 

At least thirty-five voters must sign this who reside within five 
miles of the road proposed. 


[Upon which is the usual indorsement.] 

Petition for New Road. 

To lay out road from 

Filed in the office of the County Clerk the 
18 , and received of the petitioners the sum of $ 
viewing. 

The Notice. 

Notice is hereby given, that the following is a true copy of a 
petition which will be presented to the (County Court or) Board 
of County Commissioners of County, after the expiration 

of twentyf days from this date, and on the day of 

18 , at the Court House in said County, at the next (term or) 

session of said (Court or) Board. 

Dated this day of 18 . 


day of 

, to pay the expenses of 
-, County Clerk. 


Here must follow a true and correct copy of the petition and of 
all the signatures thereto. 


* When the owners of any of the lands over which the road is to pass 
are unknown, this fact should be so stated in the petition, 
t See proviso of § 14, act April 18, 1873. 

1* 










18 


THE HIGHWAY SYSTEM. 


[Sec. II. 


Instead of a copy of the petition, a notice may be given, as 
follows: 

Highway Notice. 

Notice is hereby given, that a petition will be presented to the 
(County Court or) Board of County Commissioners of 
County, in the State of Illinois, after the expiration of twenty 
days from this date, on the day of 18 , at the 

Court House in said County, and at the next (term of said Court 
or) session of said Board, which petition is signed by thirty-five 
legal voters in the said County, praying for the establishment 
of a new road upon the following described route, to wit: 


All said petitioners residing within five miles of said route, and 
all persons interested, are hereby notified to be present at said 
(term or) session of said (Court or) Board, when and where all can 
be heard. 

Dated at this day of 18 . 


Petitioners. 


[Upon which is the usual indorsement.] 

Notice for New Road. 

To lay out road from 

Filed in the office of the County Clerk the day or 

18 , and received of the petitioners the sum of $-, to pay the expenses of 

viewing. 

-, County Clerk. 

Affidavit of Posting {to be Indorsed.) 

State of Illinois, ) 

-County. [ ss ' 

A B, being duly sworn, doth depose and 
say, that he did, on the day of A. 1). 18 , post up 

copies of the within notice, as follows, viz.: 

One copy on the door of the Court House in said county. 

One copy on the door of the County Clerk’s office in said county. 

One copy at , in Road District No. 1. 

One copy at , in Road District No. 2, etc.., in said 

county, they respectively being the most public places in the 
several road districts through which the said proposed road is to 
pass. A B. 

Subscribed and sworn to before me, this day of 

A. D. 18 . 


N. P., J. P., or 


Clerk. 













SEC. II.] UNDER PRIMARY ORGANIZATION. 19 

At the next (term of the Court or) session of the Board, if a 
hearing can be had, or if there be no opposition, and the (Court or) 
Board favor the application, the decision may be entered by 

Order. 

In the matter of the application of A B and others ( 
for a new road. ) 

In view of the foregoing petition and affidavit, and the sum of 

$-having been deposited with the County Clerk, sufficient to 

pay for the viewing, and having heard the reasons for and against 
the application. Ordered, that L M, the Surveyor of this County, 
and X Y, and Z Y, three disinterested persons, be and hereby are 
appointed to view the ground proposed for the new road described 

M | 

in the petition of A B and others, of date A. D. 18 , 

now on file with said Clerk. 

A certified copy of this order and of the petition should be im¬ 
mediately delivered to the viewers, or some one of them, who 
should at once give due notice, meet and act, and, having acted, 
report at the next session of the (Court or) Board. 

In case the granting of the petition be recommended, there must 
be, besides the report of the viewers, after proper proceedings, a 
formal order of The (Court or) Board of County Commissioners 
laying out the road. The report of the Surveyor, and the releases 
or agreements, or verdicts, if any, in respect to damages, must 
be filed in the County Clerk’s office, before the making of such 
order, so that the (Court or) Board may know the expenses involved 
in the whole matter of laying out and opening the road as 
proposed and located. 

13. Viewers, in locating a road, shall ascertain, as far 
as practicable, where damages will be claimed, and re¬ 
port the names of the individuals claiming to the county 
court at the time of making their report. It shall be 
incumbent on such owners of property, by themselves 
or agents, to inform the court, at the term at which the 
road viewers shall report, their claims for damages; and 
no damages shall be allowed, unless claim be made to 
the court as aforesaid, or to the supervisor, commis¬ 
sioner or superintendent, appointed to open the road, 
as provided by law. After a road shall be opened, and 



20 


THE HIGHWAY SYSTEM. 


[Sec. II. 


no claim for damages being set up, the state or county 
shall not be liable for any damages whatever. 1 

Agreement for Damages in Laying Out or Altering Road. 

Whereas, a road was laid out on the day of 

A. D. 18 , by L M, the County Surveyor of County, and 

State of Illinois, and X Y, and Z Y, Viewers appointed by the 
(County Court or) Board of County Commissioners of the County 
of , and State aforesaid, on the application of the requisite 

number of voters, residing within five miles of said road, as fol¬ 
lows : Commencing 
which road passes through the land of 
being known and described as follows, viz.: 

Now, therefore, it is hereby agreed between the said County 
of , and the said that the damages 

sustained by the said by reason of 

the laying out and opening said road upon his land, hereinbefore 
described, be liquidated and agreed upon at dollars. 

In witness whereof, the said County, by its duly authorized 
agent in this behalf, and the said 

have executed this agreement in writing, this day of 

A. D. 18 . 

[Indorsement.] 

Agreement for Damages in Laying Out or Altering Road. 

Of damages agreed, $ 

Dated 18 . 

Filed this day of 18 , in the County Clerk’s office of the 

County of 

-, County Clerk. 

Release of Damages. 

Whereas, a road was laid out on the day of 

A. D. 18 , by L M, the County Surveyor of County, and 

State of Illinois, and X Y, and Z Y, Viewers appointed by the 
(County Court or) Board of County Commissioners of the County 
of , and State aforesaid, on the application of the requisite 

number of voters, residing within five miles of said road, as fol¬ 
lows : Commencing 
which road passes through the land of 
being known and described as follows, viz.: 


1 § 13, act April 18,1873. 




21 


SEC. II.] UNDER PRIMARY ORGANIZATION. 

Now, therefore, know all men by these presents, that I, 

for value received, do hereby release all claims to 
damages sustained by me, by reason of laying out and opening 
said road through my lands above described. 

In witness whereof, I have hereunto set my hand and seal, this 
day of A. D. 18 . 

Executed and delivered in presence of 


Of 


[Indorsement.] 

Release of Damages. 


[seal.] 


Dated 18 . 

Filed in the County Clerk’s oflice of the County of the 

day of 18 . 

-, County Cleric. 


Viewers' Report. 


To the Hon. the (County Court or) Board of County Commissioners of - 

County , and State of Illinois : 

The undersigned, having been appointed by you to view the pro¬ 
posed route for a road beginning at , and after viewing 

the ground proposed for the same, and believing said road to be 
necessary, taking into consideration the expense of constructing 
the same and its utility to the public, we did proceed to locate 
and establish the same on the nearest and most eligible route 
from point to point given, having due regard to private property, 
causing the same to be surveyed, designating its course through 
prairies and improved land by fixing stakes in the ground, and 
through timbered lands by marking trees, would report that the 
following is a correct survey thereof as made by us under said 
appointment, and that below is a correct plat of said road, accord¬ 
ing to said survey. And annexed hereto are agreements for 
damages and releases, executed by the owners of the lands over 
which the route of the said road passes, as surveyed, and the 
several supervisors of the road districts respectively in which 
such road is located. 


Dated at 


this day of 

X Y, 

Z Y, and 
L M, 


County Surveyor of 


18 . 

► Viewers. 


County, 










22 


THE HIGHWAY SYSTEM. 


[Sec. II. 


Township No. Range No. of Principal Meridian. 


6 

5 

4 

3 

2 

1 

7 

8 

9 

10 

11 

12 

18 

17 

16 

15 

14 

13 

19 

20 

21 

22 

23 

24 

.30 

29 

28 

27 

26 

25 

31 

32 

33 

34 

35 

36 


[Indorsement.] 

Viewers' Report. 

Survey of road beginning at 

Filed this day of A. D. 18 , in the office of the 

County Clerk of the County of 

-, County Cleric. 


Unfavorable Report of the Viewers. 

To the lion, the (County Court or ) Board of County Commissioners of - 

County, and State of Illinois : 

The undersigned, having been appointed by you to view the pro¬ 
posed route for a road beginning at , and after viewing the 

ground proposed for the same, would respectfully report that we 
are of the opinion that such road is unnecessary (or improper). 
Dated at this day of 18 . 

L M, County Surveyor,) 

X Y, v Viewers. 

Z Y, ) 

















































Sec. II.J 


UNDER PRIMARY ORGANIZATION. 


23 


[Indorsement. J 

Viewers' Report. 

Survey of road beginning gt 

Filed this day of A. D. 18 , in the office of the 

County Clerk of the County of 

-, County Clerk. 

Order Laying Out a Highway {where Damages are Released or 

Agreed upon.) 

State of Illinois, ( In the (County Court or) office of the 

-County. } Board of County Commissioners of said County. 

Whereas, on the day of 18 , a petition, in 

writing, of 

was filed with the County Clerk of said County, and after due 
notice presented at a regular (term or) session of said (Court or) 
Board, praying for the laying out and opening of a new road as 
therein and hereinafter described, said petitioners being voters 
residing within five miles of the route of the said new road ; and 
it appearing from legal evidence that a copy of said petition, or a 
notice of the presentation thereof according to law, had been 
posted up, as is more particularly set forth in the affidavit of J K, 
on file in said Clerk’s office, not less than twenty days before the 
same was presented ; and whereas, said (Court or) Board did on the 
day of 18 , appoint L M, the Surveyor of said County, 

and X Y and Z Y, to view the ground proposed, and they having 
viewed the ground in said petition described, and after such view 
they believe said road applied for to be necessary, as set forth in 
their report on file in the office of the County Clerk of said County, 
and having caused a survey and plat of said road to be made on 
the day of 18 , by 

a competent Surveyor, which plat and survey have been duly 
reported, and filed, herein and hereby are made a part of this 
order; and having ascertained the aggregate amount of damages 
to which the owner of the land over which said road was to pass 
entitled, and said damages having been definitely fixed 

by* 

It is, therefore, hereby Orderedf that the said road be and is 
hereby located, determined and established as follows, to wit: 
Beginning 

as shown by the plat annexed to said report, and that the same 


* State in this space the facts as to release of or agreement or verdicts for 
damages. 

t Without the order of the Board of County Commissioners, confirming the 
viewers’ report and locating the road, the proceedings would be void. 
Dempsey v. Donnelly, 58 Ill. 40. 









24 


THE HIGHWAY SYSTEM. 


[Sec. II. 


be and hereby is ordained and declared to be henceforth a public 
highway of feet wide, the line of said survey 

being the centre of said road. 

This is entered of record by the County Clerk, and, together 
with all the papers and entries, makes the record of the laying out 
of a new road. 

The damages having been released or agreed on, of course no 
appeal is in this case desirable, or, perhaps we may say, possible. 

In case damages are not released or agreed upon, and are 
claimed by individuals or corporations, add a clause stating the 
facts: 

And we do further report that E F, G H, I J, K L, M N, and 
O P, etc., claim damages in the matter of said road. 

* Cl aim for Damages. 

State of Illinois, [ ,, In the matter of the petition of A B and 

-County. ) b ' ’ others for a new road, etc. 

(In the County Court of County at the term 

A. D. 18 , or) Before the County Board of Super¬ 
visors of County, now in session. 

E F hereby claims damages because of the location of the new 
road described in the petition of A B and others, and the report of 

L M, X Y, and Z Y, Viewers, in the sum of $- (be sure and set 

them high enough), and asks for a jury to view and assess the 
same. 

Dated A. D. 18 . 

E F, or 

E F by C D his Agent (or Attorney.) 

14. Whenever it shall be represented to the county 
court, by petition of thirty-five voters, that a public 
road established by said court, or any part thereof, is 
useless or burdensome, the said court, upon a sufficient 
sum of money being deposited with the clerk to nay 
the expenses of a review (such money to be returned 
if the road shall be declared useless), shall appoint 
three suitable and disinterested persons to view the 
same, who shall report to the said court at the next 


* Unless this he made as prescribed in Section thirteen, Act April 18, 1873, 
all claims will be w aived. 







SEC. II.] UNDER PRIMARY ORGANIZATION. 


25 


term after such appointment, whether such road be 
useless and burdensome, together with their reasons 
for such opinion; and the county commissioners may 
then order such road to be vacated, if, in their opinion 
and discretion, they shall deem such order proper: 
Provided , that no petition praying for the establish¬ 
ment or vacation of a public road shall be received by 
the said court, unless the same petitioners, or some of 
them, shall have given twenty days’ public notice of such 
application, by a written notice, posted up in the most 
public place in each road district through which the 
road or proposed road shall pass, and a like notice, par¬ 
ticularizing the route and important points, on the door 
of the court-house, and of the county clerk’s office, 
should it be kept in a separate building. 1 


PETITION FOR VACATING A ROAD. 


State of Illinois, 
-County. 


ss. 


Road District 


To the Board of County Commissioners of said County: 

The undersigned, who are qualified voters, residing within said 
County, hereby respectfully represent that the road known as 
{here describe the road or the part of road to be vacateds, as it 10a 


i § 14, act April 18, 1873; § 19, c. 93, R. S. 483, 484. 

By the common law, the burden of opening and repairing highways, and 
constructing and maintaining bridges, rests with the counties. The same bur¬ 
den is also imposed on counties, by almost universal usage; and the exception 
throwing this burden on particular corporations by prescription, only the more 
clearly shows the general rule. 

Hoes v. Canal Trustees, 14 Ill. 402; Dennis v. Maynard, 15 Ill. 477. 

The seventh section of “An act concerning public roads,” approved 
Feb. 3, 1835, and the second section of “An act to amend the act concerning 
public roads,” approved Jan. 18, 1836, conferred on the county commissioners’ 
courts a general superintending and discretionary power over the subject of 
public roads and bridges. 

Eyman v. The People, 1 Gilm. 4. 

County commissioners were then vested with exclusive jurisdiction over 
all matters in relation to roads in their respective counties. 

Nealy v. Brown Co. Comm’rs, 1 Gilm. 10. 

The laying out and opening of roads is not an exercise of judicial powers; 
hut the presumption is, that the antecedent proceedings have been regular; 
which presumption, however, is subject to be rebutted.— Id. 

Appeal.— The owner of land, over which a road may he located, may 

2 




20 


THE HIGHWAY SYSTEM. 


[Sec. II. 


located ) has become useless (or burdensome), do hereby petition 
you to vacate said road 

And your petitioners pray that you will proceed and vacate said 
road accordingly. 

Dated at this day of 18 . 

Names : A B {et al.) 

At least thirty-five voters must sign this petition, and a suffix 
cient sum of money must be deposited to pay the expenses of a 
view. 

Notice of the application must be given as in the case of a new 
road. §§ 11, 12, p. 16, supra, and forms of notice, affidavit, report, 
order,* indorsement, etc. 

Formal orders reciting the facts must be made and entered of 
record in each case, whether the application be refused or 
granted. 

appeal from the decision of the county commissioners’ court, on the report 
of the householders. 

Hutchins v. County Commissioners, 1 Gilm. 345; County of Sangamon v. 

Brown, 13 Ill. 207. 

A road is to he considered as established, and, in contemplation of law, 
opened, when the proper court has approved of the report of the viewers, 
and sanctioned the location. 

Ferris r. Ward, 4 Gilm. 499. 

The law of 1835 did not require a survey of the road to be made and filed, 
hut provided that the viewers should designate the course of the road by 
stakes, marked trees, etc.; and the landmarks made by them, and not their 
report, will control in determining the locality of the road. 

Dumoss v. Francis, 15 Ill. 543. 

A highway may be legally laid out and established by public use, and 
recognition of it by the proper authorities and by acquiescence. 

Dimon v. The People, 17 Ill. 41(5; Daniels v. The People, 21 HI. 439. 

Abandonment; vacating of.— If the public is to he charged with the 
abandonment of a road, the proof of the fact must be accompanied by the 
further proof that another road has been adopted in its stead. A public road 
established by public authority continues as such until it shall be vacated by 
a like authority. 

The City of Peoria v. Johnston, 56 Ill. 45 

Champlin v. Morgan, 20 Ill. 181; Town of Lewiston v. Proctor, 27 Ill. 414. 

Where it appears that the public have ceased to travel a road, and have 
acquired another which accommodates public travel, a jury would be war¬ 
ranted in presuming an abandonment of the first road. And it is error to 
instruct the jury that the new road must accommodate the public equally as 
well as the former road. 

Grube v. Nichols, 36 Ill. 92. 

Laying out a road. —For a case where it was held that, in an order estab- 


* Without the order of the Board of County Commissioners, confirming the 
viewers’ report and vacating the road, the proceedings would he void. 
Dempsey v. Donnelly, 58 Ill. 40, 






SEC. II.] UNDER PRIMARY ORGANIZATION. 


27 


15. Whenever a new road shall be located, the county 
commissioners shall immediately cause the supervisors 
of each district through which such road shall pass to 
be notified of such location; and it shall he the duty 
of such supervisors to open such road within their 
respective districts, and keep the same in repair, so far 
as the labor of the persons hound to work on said road 
shall enable them; and if such labor be insufficient, 
the county commissioners shall cause the same to be 
cut out and opened at the expense of the county, 
whenever, in their opinion, the funds of the county 
will justify such expense; and after being so opened, 
the same shall be kept in repair by the supervisors, as 
in other cases. 1 

lishing a road, the description of the route was sufficiently certain, see Clif¬ 
ford v. Town of Eagle, 35 Ill. 444; in which also the proceedings for laying out 
and establishing a road are set forth and commented upon in a suit for 
obstructing the same. 

Description of route. —Although a road cannot he located from a mere 
reference to the calls and distances given in the order establishing it, yet if 
the court can be satisfied, on calling surveyors and receiving proof on the 
points of location, that the road can be located as laid out, the order laying 
out the road will he sufficient. 

Comm’rs of Highways v. The People, 38 Ill. 348. 

The description of a road proposed to he laid out is sufficiently certain, 
where, from the whole proceedings had thereon, taken together, there appears 
no difficulty in locating the same. 

Todemier v. Aspinwall, 43 Ill. 401. 

Road through an estate. —Damages assessed in favor of the heirs. 
Separate damages to the widow cannot be assessed.— Id. 

Width of road. —Where an order of a county commissioners’ court estab¬ 
lishing a public highway, omitted to prescribe the width of the road, it was 
held, the order was not a nullity, nor the road opened under it illegal, by 
reason of such omission, but the proceeding was merely erroneous. 

Pierce v. Town of Gilmer, 54 Ill. 25. 

Tt cannot be objected that all the requirements of the statute were not 
observed, when the owner himself instituted the proceedings, and every act 
done was with his knowledge and consent, and the question of the want of 
power cannot arise. 

Trickey v. Schlader, 52 Ill. 78. 

i § 15, act April 18, 1873; § 20, c. 93, id. 

A supervisor OF roads is not bound, at all events, to open and keep in 
repair a new road; but is only to do so so far as the labor under his control 
will enable him. 


Lequat v. The People, 11 Ill. 330. 


THE HIGHWAY SYSTEM. 


[Sec. II. 


28 


16. Any person or persons desirous of having a cart 
road laid out for his or their convenience, from the dwell¬ 
ing or plantation of such person or persons to any public 
road, or from one public road to another, or from one 
lot of land to another, shall present a petition to the 
county court of the proper county, setting forth the 
reason for desiring such road, and describing the points 
from and to which said road or cartway is desired to 
pass; and the court shall, upon a sufficient sum of 
money being deposited to pay for viewing such road, 
appoint three freeholders to view the same: Provided , 
that twenty days’ notice shall be given of the inten¬ 
tion to present such petition, to each person residing 
in the county through whose land such cartway is 
desired to pass; and also by posting up a notice 
thereof on the door ot the court-house and clerk’s 
office of the county, if not kept in the court-house, for 
the same period of twenty days; and the viewers, when 
appointed, shall examine the route proposed for such 
road, and shall examine any other route which they 
may deem proper; and if they shall be of opinion that 
a cartway is necessary and proper, from and to the 
points named in the petition, they shall lay out the 
same in such manner as to produce the least inconven¬ 
ience to the parties through whose land the same shall 
pass, and shall make a written report to the court, 
describing the route of the road, and the numbers of 
the lots of land through which the same shall pass, and 
naming the owners thereof, if known, which report 
shall be examined by the court; and on hearing the 
objections, if any, if the court shall be of opinion that 
the road is necessary and right, an order shall be made 
establishing the same not exceeding thirty feet wide: 
And provided , also , that if any owner of land shall 
object to the opening of such road, the same shall not 


SEC. II.] UNDER PRIMARY ORGANIZATION 


29 


be opened by the person or persons desiring the same, 
until the person or persons objecting shall be paid all 
the damages to be sustained by the opening thereof; 
and in case the parties cannot agree on the amount of 
damages, the same shall be ascertained and assessed as 
hereinafter provided; and the damages being paid on 
final decision, or a sufficient sum deposited with the 
court for that purpose, the person or persons applying 
therefor, their heirs and assigns, shall have the right to 
open said road, and shall have the right of way upon 
the same forever thereafter: Provided , f urther , the 
court may pay a portion of said damages. 1 

PETITION FOR A CARTWAY OR PRIVATE ROAD. 

State of Illinois, [ 

-County. \ 

To the (County Court or) Board of County Commissioners of said County: 

The undersigned, who is a freeholder of said County, and lives 
on the east half of the northwest quarter of section 
of township number , north of range east of the 

P. M., by this his petition, asks for a private or cart 
road, for his use, from his homestead on said tract of land to 

for the reason that without such cart 
road he has no adequate means of ingress or egress to and from 
such homestead, and that such cart road would pass through the 
west half of said northwest quarter of said section, the land of 
C D, and through the {describe each tract or parcel of land, and 
give the name of the owner through which the road would, if laid 
out as desired, pass). 

Dated A. D. 18 . A B. 

Notice of the Application. 

Take notice, That at the next (term or) session of the (County 
Court or) Board of County Commissioners of the County of 

, and State of Illinois, to be liolden at the Court House 
in , in said County, commencing on the 

day of , A. D. 18 , the undersigned intends to and 

will apply for a cart road to run from his homestead on the {here 
describe the road as it is described in the petition.) 

Dated A. D. 18 . A B. 

i § 16, act April 18, 1873; § 21, c. 93, id. 



30 THE HIGHWAY SYSTEM. [SEC. II. 

This notice must be served and posted at least twenty days 
before the session. 

Affidavit of Service and Posting. 

State of Illinois, \ 

-County, j 

A B, being duly sworn, says : That on the day of 

A. D. 18 , he delivered a true copy of the within 

notice to and left the same with C D, EF,ti H (here name all 
persons residing in said County through whose lands the road is to 
pass), respectively, and that afterwards on said day he posted a 
copy of the same on the Court House door in said County, and 
another copy on the door of the Clerk’s office of said County, and 
further affiant saitli not. 

[Jurat.] A B. 

Be present on the first day of the session (or term), file the peti¬ 
tion and affidavit, make a sufficient deposit of money to pay for a 
view, and if there be objections,* be prepared to overcome them. 
If the decision be in favor of the road, or there be no objection, 
three viewers will be appointed. 

Resolution (or Order) Appointing Viewers. 

The petition of A B, asking for a private or cart road, coming up 
for consideration, and proof of notice being filed and deposit 
made as prescribed by law, and objections being made by C I), 
and heard (or no objection being made), (ordered or) resolved, 
That L M, County Surveyor, and X Y and Z Y, three disinterested 
freeholders of said County, be and hereby are appointed to view 
the ground and report. 

Notice with certified copy of the petition and order should be 
obtained from the County Clerk and given to the Viewers. 

Then the Viewersf (except the Surveyor) will be sworn, and will 
view, and if they be of the opinion that the cartway is necessary 
and proper, will proceed to lay it out as prescribed, and will 
report. 


* See § 23, infra. It has, however, been held that a private way cannot he 
established by commissioners over lands against the objections of owners. 
Nesbitt v. Trumbo, 39 Ill. 110; Crear v. Crossly, 40 111. 175. The remedy 
against the commissioners proceeding to lay out such private way is by ap¬ 
peal, not by injunction. Winkler v. Winkler, 40 Ill. 179. 

+ Where a report is signed by two of three viewers of a road, it will he pre¬ 
sumed that the third was present and consulting, until the contrary be shown. 
Louk v. Woods, 15 Ill. 256. 




SEC. II.] UNDER PRIMARY ORGANIZATION. 31 

The damages, if possible, should he agreed upon and paid or 
released, or they will have to be, if indeed they can be* ascer¬ 
tained and assessed by a jury, and the amount of their verdict, 
with costs paid into court, before the road can be opened. 

17. Whenever any person or persons desire a change 
or relocation of any state or county road now located, 
notice of such intended application shall he given by 
putting up advertisements in writing, at least one in 
each road district through which said road shall pass, 
and on the court-house door, twenty days previous to 
the sitting of the court to which application shall be 
made; and on the petition of thirty-five qualified 
voters, living immediately in the vicinity of such road, 
the court shall appoint three viewers to examine and 
make the necessary relocation; they shall carefully 
view the road as located, and the ground for the pro¬ 
posed route, and being of the opinion that the public 
good requires an alteration, in view of obtaining a more 
suitable place to erect a bridge over a stream, wind a 
hill, avoid a swamp, expensive work, or where the 
present road greatly damages an individual, and can be 
varied without material damage to the public, in such 
cases alterations may be made; and a majority of said 
viewers being of that opinion, they shall cause a survey 
and relocation to be made, returning to the county 
court a plat, with the courses and distances of the road 
as established. But if they consider an alteration not 
necessary they shall so report, and the court may con¬ 
firm and accept the report or take such further action 
thereon as to them may seem right. In like manner, 
any state road now established, which may be consid¬ 
ered useless or burdensome, on notice, petition, view 
and report to that effect, as required in this section in 
case of an alteration, the same mav be annulled and 
vacated. 1 

1 § 17, act April 18, 1873; § 31, c. 93, id. 


* Nesbitt v. Trumbo; Crear v. Crossly, supra. 






32 


THE HIGHWAY SYSTEM. 


[Sec. II. 


PETITION FOIl ALTERING OIl RELOCATING A ROAD. 


State of Illinois, 
-County, 


ss. 


Road District 


To the Board of County Commissioners of said County : 

The undersigned, who are qualified voters, residing in the im¬ 
mediate vicinity of the road known as 

do hereby petition you to alter (or relocate) said road as follows: 
Commencing at 

in said road district, and running the line of said road as follows, 
viz.: 


And your petitioners pray that you will proceed and alter said 
road accordingly. 

Dated at this day of 18 . 

Names: A B, etc. 

At least thirty-five qualified voters must sign this petition. 

Notice of the application must he given as in the case of a new 
road, by posting notices. See §§11, 12, p. 16, supra, and forms 
of notice, affidavit, report, order,* etc. 

18. When it shall become necessary to have a state or 
county road now located and established, altered, relo¬ 
cated or vacated at a county line, or a new road laid 
out, the same being petitioned for and notice given as 
required in the preceding section, the same shall be 
agreed upon by viewers from each county, to be 
appointed by the counties immediately interested, and 
no road shall be altered at a county line, or elsewhere, 
unless a majority of the viewers appointed agree on 
such change or alteration: Provided , that no appli¬ 
cation shall be acted upon or viewers appointed, as 
contemplated in the preceding sections, unless the 
petitioners deposit money sufficient to pay the viewers 
in case an unfavorable report be made, to be refunded 
should the road be located, altered or vacated, as peti- 


* Without the order of the Board of County Commissioners, confirming the 
viewers’ report and relocating the road, the proceedings would be void. 
Dempsey v. Donnelly, 58 Ill. 40. 







Sec. II.j 


UNDER PRIMARY ORGANIZATION. 


33 


tioned for. In case of a disagreement in the location 
or alteration of any road crossing a county line by the 
county authorities, either county may appeal to the 
circuit court, who shall hear and determine the case, 
grant a review, appoint reviewers, and make such order 
therein as shall seem rigdit in the establishment of the 

V_ i 

road in dispute. 1 

19. In all cases where a petition is presented to the 
county court, praying for a change, alteration, location, 
or vacation of a county road, as provided for in this 
act, if there shall be remonstrances presented against 
granting the same, it shall be the duty of said court 
to give due consideration both to the petition and 
remonstrance, and grant or refuse the prayer of such 
petitioners as in their discretion shall be just and 
proper. 2 

REMONSTRANCE. 

State of Illinois, I 
-County. \ ss> 

To the Board of County Commissioners of said County; 

We, the undersigned, do hereby remonstrate and enter our pro¬ 
test and objections to the change (alteration, location or vacation, 
as the case may be,) of the road described in the petition of A B 
and others. 

Dated at this day of 18 . 

Names : C D, and many others. 

Verdict of Jury — Assessment of Road Damages. 

State of Illinois,> sg Before - 

-County. J 

Verdict of jury in the matter of the assessment of damages con¬ 
sequent upon the of a road over lands 

described and owned as follows, viz. : 

Description of land : Owned by : 

(Here describe each tract with (Here give the owner's name, if 
legal certainty.) known; if not, say “ owner 

unknown.”) 

i § 18, act April 18, 1873; § 32, c. 93, id. 
a § 19, id. 






34 


THE HIGHWAY SYSTEM. 


[Sec. II. 


We, the jury summoned to assess damages in the above cause, 
having taken the oath required by law, and having heard the evi¬ 
dence presented, and having in a body visited and examined the 
location of the said road, the lands to be taken and affected by the 
proposed of the same, do assess the 

damages at what we deem just and right to each of said claim¬ 
ants (having first estimated and deducted the advantages and 


benefits), as follows, viz.: 

To the said the sum of dollars ; 

To the said the sum of dollars ; 

To the said the sum of dollars ; 

To the said the sum of dollars ; 

The above verdict given under our hands, this day of 

18 . 


Jurors should here sign their names 
(in full). 

20. All roads shall be surveyed, and a plat, with the 
courses and distances thereof, returned with the report 
of the viewers to the county court, which shall be 
recorded and filed. The county court, on the return of 
the report and plat, shall determine and establish on 
record the width of the road, making the main leading 
roads four rods wide and none less than fifty feet. 1 

21. In the location and alteration of all roads, it shall 

i § 20, act April 18, 1873; § 33, c. 93, id. 

Report ; survey ; flat. —Under township organization, before a new road 
can be opened, or an old one changed, there must be a report and survey; these 
and a plat of the road must accompany the order of the commissioners declar¬ 
ing such highway opened, which order, with the petition, should be left with 
the town clerk, who should note the time of filing. 

Town v. Town of Blackberry, 29 Ill. 137. 

After the owner of land has accepted the damages allowed for opening 
a highway, it is too late for him or his grantee to declare the proceedings for 
opening it void.— Id. 

The proceedings in relation to tiie opening of a highway must be filed 
with the town clerk, within a reasonable time after they occur. But his 
neglect to mark the correct time of filing will not be fatal. A substantial 
compliance with the requirements of the statute is all that is necessary. 

Town v. Town of Blackberry, 29 Ill. 137; Allison v. Comm’rs of Highways, 

54 Ill. 170. 

An overseer of highways, in order to justify for opening a road, under 


Sec. II.j 


UNDER PRIMARY ORGANIZATION. 


35 


be the duty of viewers to make the same as direct as 
the ground and circumstances will allow, particularly 
the main leading roads. Previous to entering upon 
their duties, they shall be sworn before some officer 
authorized to administer oaths, that they will faithfully, 
impartially, and to the best of their judgment, dis¬ 
charge the duties incumbent on them as road viewers, 
under the law and appointment of the court. 1 

22. County surveyors may act as road viewers in their 
respective counties, without further qualification, and 
may administer the proper oath of office to other road 
viewers who may be associated with them or other¬ 
wise. 9 

23. In all cases where a public road shall have been or 
may be authorized by law to be laid out or constructed 
in this state, either by state or county authority, and 
the same is required to pass over the land belonging to 
any company, corporation or individual, and the owner 
or owners shall object thereto, and cannot agree with 
the commissioner, superintendent or supervisor author¬ 
ized to construct the same, on the amount of damage 
which such owner or owners may claim, it shall be 
lawful and shall be the duty of the county court to 
cause a jury of six freeholders to appear before said 
court, at such time as may be fixed by said court; and 

an order of the commissioners of highways, must show that a case existed 
which justified the order issued by them. 

Guptail v. Teft, 16 Ill. 365. 

Where a road, after its survey and location, has not been opened for the use 
of the public, nor the proper notice given to the owner of the land to remove 
his fences, neither the commissioners of highways nor any other person can 
remove a fence without becoming trespassers. 

Taylor v. Marcy, 25 Ill. 518. 

Highway commissioners can be made to respond in damages, if they 
are misled as to the correct line of a road, and in attempting to open it commit 
a trespass. 

Beyer r. Tanner, 29 Ill. 135. 

' i § 21, act April 18, 1873; § 34, c. 93, id. 

2 § 22, id . . 




36 


THE HIGHWAY SYSTEM. 


[Sec. II. 


the said jury, after being duly sworn faithfully and im¬ 
partially to examine the ground which shall be pointed 
out to them, shall assess the damages which the owner 
of the land will sustain by the said road, and make 
written report to the said court, at such time as the 
court may direct — a copy of which award shall be fur¬ 
nished to the party claiming damages ; and the money 
being paid or tendered to the party to whom the same 
is assessed, the said road may be opened by the proper 
authority of the county, and the right of way acquired 
by the public for a public road: Provided , that the 
corporation, company, owner or owners of the land 
shall have the right to appeal from the award of the 
jury to the circuit court, within twenty days from the 
approval of said award by said county court, upon exe¬ 
cuting bond, to be apjDroved by said court, and the case 
shall be acted upon in such manner as the circuit court 
may determine, with a view to justice, and make such 
order thereon as may seem right and just — which deci¬ 
sion shall be final. The provisions of this section shall 
extend to the right of way for a cartway or private 
road, as contemplated in section sixteen of this act. 1 

24. If any person shall obstruct any public or private 


» § 23, act April 18, 1873. See § 38, c. 93, id. 

Practice.— For a full discussion of the practice in the county and circuit 
courts, in the matter of proceeding to claim damages for the laying a road 
over the claimant’s land; and the questions to he decided in said courts, and 
the right to and who may appeal, and how, from the county court to the 
circuit court; consult County of Sangamon v. Brown, 

13 Ill. 207. 

Decision of the circuit court is final in proceedings to locate highways. 

Sangamon Co. v. Brown, 13 Ill. 210; Marion Co. r. Harper, 44 Ill. 482. 

A claim for damages occasioned by the location of a public road, is not 
to be presumed, but must be expressly made, and at the proper time, so that 
if the state or county thinks the payment of damages too great a sacrifice 
for the benefits to be obtained by having a road, it may abandon the project, 
or locate it elsewhere. 

County of Sangamon v. Brown, 13 Ill. 207; Ferris v. Ward, 4 Gilm. 499. 

Commissioners appointed to assess the damages a party may sustain by 
the opening of a road across his premises, have not authority to make an 


Sec. II.] UNDER PRIMARY ORGANIZATION. 


37 


road by felling a tree or trees across tlie same, by 
encroaching upon or fencing up the same (except for the 
purpose of raising a hedge," in which case not more 
than one-fourth of the width of the road shall be occu¬ 
pied for such purpose), or by placing any other obstruc¬ 
tion therein, he shall forfeit for any such offense a sum 
not exceeding ten dollars, and a sum not exceeding 
three dollars for every day he shall suffer such obstruc¬ 
tion to remain, after he shall have been ordered to 
remove the same by any supervisor, county commis¬ 
sioner or justice of the peace; and if any person shall 
purposely destroy or injure any bridge or causeway, or 
remove any of the timber or plank thereof, or destroy 
or deface any guide board, post or milestone on a pub¬ 
lic or private road, or dig any drain or ditch across a 
public or private road, such person so offending shall 
be indicted or sued before a justice of the peace, and 
on conviction shall be fined in any sum not less than 
five dollars nor more than one hundred dollars, except 
bridges, which shall be double the value thereof, and 


agreement in relation thereto; and any such unexecuted agreement maybe 
revoked. 

Kimball v. Yates, 14 Ill. 464. 

Damages. —Under the provisions of the law of 1851, for township organi¬ 
zation, the public is excluded from opening or using a highway until the 
damages are assessed or agreed upon, or released in writing. 

Norton v. Studley, 17 Ill. 556. 

Adjustment of damages. —The question of damages must be satisfacto¬ 
rily adjusted by release or assessment, or in some other recognized mode, 
before an owner can be forcibly dispossessed of his property. The act of 1861 
does not require the owner to be present and claiid damages as did the old 
law, but the commissioners, in case they and the owner cannot agree, must 
assess them at what they deem just and right, and deposit a statement of the 
amount assessed with the town clerk, who shall note the time of liling the 
same. Injunction restraining commissioners made perpetual. 

Comm’rs of Highways v. Durham, 43 Ill. 86. 

Tiie decision in Taylor v. Marcy, 25 Ill. 518, is modified to conform to the 
above.— Id. 

Damages; estoppel.— If parties, over whose land a road has been laid, 
having notice, real or constructive, fail to claim damages at the appropriate 
time, they will ever afterwards be estopped. 

Taylor v. Marcy, 25 Ill. 518. See 29 Ill. 137, 


38 


THE HIGHWAY SYSTEM. 


[Sec. II 


for burning a bridge, to be punished agreeably to the 
criminal code: Provided, however , that this section 
shall not be construed to extend to any person who 
shall lawfully cut down any timber for rails, firewood 
or other purposes, and who shall immediately remove 
the same out of the road, nor to any person through 
whose land a road shall run, who shall dig a ditch or 
drain across such road, and keep the same in good 
repair. 1 

25. If any person or persons shall obstruct any public 
or private road, in the manner provided in sections twen¬ 
ty-four (24) and twenty-five (25) of this act, the penalty 


1 § 24, act April 18, 1873. See § 16, c.,93, id. 

When one obstructs a roacl which is used by the public, for even the shortest 
period of time, he does it at his peril; for if it should be made to appear that 
such road was legally established, he would be accountable, whether he had 
actual knowledge of the fact or not. 

Ferris v. Ward, 4 Gilm. 499. 

Where a person obstructs a highway which has actually been opened, 
traveled, and worked, under an order of the commissioners establishing the 
same (such order not stating the width of the road), he will be liable therefor, 
as for obstructing a legally established highway. 

Pearce v. Town of Gilmer, 54 Ill. 25. 

The fact that a road is but little used does not authorize a party to close 
it up. 

Dumoss v. Francis, 15 Ill. 543. 

A notice by a supervisok, requiring a person to remove two certain rail 
fences built by him across a public road, and specifying the particular place 
of obstruction by stating the direction of the fences made by him, is sufficient. 

Ferris v. Ward, 4 Gilm. 499. 

The remedy for obstruction of a highway is complete at law. 

Dunning v. City of Aurora, 40 Ill. 481. 

Penalty. —For continuing an obstruction to a highway, a party should 
be prosecuted civilly for the penalty, after he shall have been ordered to 
remove it. 

Sweeney v. People, 28 Ill. 208. 

No authority is given to an individual to sue in his own name for a penalty 
for continuing the obstruction of a road; and no jurisdiction is given to a 
justice of the peace in the premises. The offenses of obstructing and con¬ 
tinuing to obstruct a road distinguished. 

Crosby v. Gipps, 19 Ill. 310; Bickerdike v. Dean, 21 Ill. 199. 

Suits. —A supervisor may institute proceedings to recover the penalties for 
obstructing roads, given by the road law of 1841, before justices of the peace. 

Ferris v. Ward, 4 Gilm. 499. 

Removing fence from supposed highway. —Where sued in trespass, it is 
error to reject evidence that defendants acted under a resolution adopted at a 


Sec. II.] UNDER PRIMARY ORGANIZATION. 


39 


provided for in said sections may be recovered either by 
an indictment, or in an action of debt, before any jus¬ 
tice of the peace of the county in which the offense 


town meeting; such evidence is admissible to repel the idea of malice, and 
thus to mitigate punitive damages. 

Gray v. Waterman, 40 Ill. 523. 

Any person may remove a fence erected across a highway, without being 
guilty of trespass. 

Marcy v. Taylor, 19 Ill. 634. 

In an action to recover a penalty for obstructing a highway, if the com¬ 
plaint gives a local description, sufficient to fix the precise point obstructed, 
and also the termini of the road, the latter maybe disregarded. 'But when 
the allegation is general, that a road leading from one point to another has 
been obstructed, the existence of the road between the points named must be 
proved, as a matter of essential description. 

Town of Lewiston v. Proctor, 27 Ill. 414. 

Evidence, amount of.— In prosecutions for obstructing highways, the 
defendant’s guilt must be established by a clear preponderance of evidence, 
but not necessarily beyond a reasonable doubt.— Id. 

A party is not liable, as a matter of course, to the highest penalty imposed 
for obstructing a highway. 

Leech v. Waugh, 24 Ill. 229. 

A street of an incorporated town or village, when dedicated, is a public 
highway, and any person obstructing it will be liable to the statutory penalty. 
Otherwise if it is incorporated, as then the streets are vested in the town, and 
are subject to the corporate authorities.— Id . 

Dedication. —The person making a town plat and dedication, thereby 
vests the legal title to the streets and alleys therein to the corporation of the 
town; and such person cannot bring an action of trespass for an injury to the 
soil or freehold, as in case of highways. 

Hunter v. Middleton, 13 Ill. 50. 

Where the owner of premises in Chicago, without authority from the 
city, elevated a sidewalk, in which he placed a grating next to his building, 
which was so defective that a person stepping upon it fell through into the 
area and was injured: Held , that no want of due care on the part of the party 
injured appearing, the owner of the premises was liable for the injury. 

Stephani v. Brown, 40 Ill. 428. 

Nor did it alter the case that sufficient room was left to pass on the 
sidewalk.— Id. 

Nor that the premises were rented to another.— Id. 

For obstruction of streets. —As to power of corporate authorities of 
towns and cities to punish by fine. 

Ill. Cen. R. R. Co. v. City of Galena, 40 Ill. 344; T. P. & W. R. W. Co. v. Town 

of Chenoa, 43 Ill. 209. 

Threatened inclosure of highway. —Plank-road. Injunction allowed. 

Craig v. The People, 47 Ill. 487. 

Where a tlank-road has been used for a number of years by the public, 
and a company have used for a number of years a portion of the public high¬ 
way as their roadway, causing the public road to be closed up to divert travel 
to their road, they cannot close up their road against the public.— Id. 

The provisions of the statute in relation to selling plank-roads to 


40 


THE HIGHWAY SYSTEM. 


[SEC. II. 


was committed, which, action maybe brought upon the 
complaint, on information, of any person who may 
complain, for the use and benefit of the county. 1 

26. If any person shall impair any public or private 
road, by plowing or turning a current of water so as to 
saturate or wash the same, he shall forfeit and pay a fine, 
for the first offense five dollars; and for a second 
offense ten dollars; and at that rate for every addi¬ 
tional offense, which fines shall be collected either 
before a justice of the peace or by indictment in the 
circuit court, as now provided by law. 2 

27. If any person shall ride, lead or drive any wagon, 
carriage, dray, cart or other vehicle or conveyance, or 
any horse, mare, mule or ox, or other animal, over, on 
or across any public bridge, or any bridge used by the 


counties, on the expiration of the charter of the roacl, does not confer 
authority on the company to close up such road until the county pur¬ 
chases.—Craig v. The People, 47 Ill. 487. 

A bridge constructed on the most approved plan, at the proper place, 
and with sufficient channel between the piers, over any of our navigable 
waters, cannot under any circumstances be held to he a material obstruction 
to the navigation, if it appear that in ordinary times with ordinary wind and 
water, the draw can be safely passed, and that no better structure could be 
erected for the purpose designed, with the amount of outlay demanded for 
such undertakings. If on reaching one of these bridges the vessel should be 
overtaken by an unfavorable wind, or by any circumstance that would render 
some delay prudent, the delay must be incurred, for the right to erect the 
bridge is coextensive with the right to navigate the river. A mere delay in 
passing a bridge, which prudence would advise at unpropitious moments, 
when wind and currents are not favorable, cannot affix to it the quality of a 
material obstruction, or of any other description of obstruction, for the erec¬ 
tion of which the owners should be liable in damages. 

Ill. Riv. Packet Co. v. Peoria Bridge Asso., 38 Ill. 467; City of Chicago v. 

McGinn, 51 Ill. 266. 

Approaches to a bridge.— Where a bridge is erected across a canal 
within the corporate limits of a city, so long as the trustees of the canal do 
not object, the city has ample authority to make approaches to the bridge 
and exercise control over them. And where the city, in the exercise of its 
authority, undertakes to make the passage-ways to a bridge erected under 
such circumstances, there can be no doubt of its obligation so to exercise its 
authority as not to endanger the lives or limbs of its inhabitants. 

City of Joliet v. Verley, 35 Ill. 58. 

1 § 25, act April 18, 1873. See J. & C., Fines. 

2 § 26, id. 


Sec. II.] UNDER PRIMARY ORGANIZATION. 


41 


public, within the limits of this state, faster than a walk, 
lie shall forfeit and pay, for each offense, the sum of 
five dollars, which penalty shall be collected, either 
before a justice of the peace or by indictment in the 
circuit court of said county, as is provided by the last 
preceding section. 1 


III. The County Court, or the Board of County Commissioners (Art. 10, 
§6, Const. 1870) — Jurisdiction; Supervisors (of Roads). 

28. Board of county commissioners, vested with the general superintend¬ 
ence over public roads, may cause new roads to be located, and to alter or 
vacate roads within their respective counties. 

29. At the December term annually to divide their respective counties into 
road districts, and appoint a supervisor for each road district; first super¬ 
visors, however, to be immediately appointed, and districts to be made. 

30. Notice of their appointment to be served by the sheriff on the several 
supervisors, accepting which they are each to return a poll list within fifteen 
days to the county clerk; sheriff’s return; fines for nonfeasance and misfea¬ 
sance of the county clerk and sheriff prescribed. 

31. Failure of supervisor to accept, mulcts him in a five dollar fine, for the 
benefit of roads; the county court may excuse him, and create vacancies, and 
shall fill them promptly at the term when they occur. 

32. Duties of the supervisor detailed and prescribed; to maintain and 
properly keep roads and bridges in his district in good repair, together with 
guide boards, etc. 

33. To remove obstructions, repair and rebuild roads and bridges, and call 
out the persons owing road labor for such purpose to perform it; if the expense 
will not exceed ten dollars, may hire; if it will, then he is to report for instruc¬ 
tions to the board of county commissioners. 

34. The county court, at the December term in each year, to prescribe road 
labor for the able-bodied males between the ages of twenty-one and fifty, to 
be certified to each supervisor. 

35. Road tax not exceeding twenty cents on each one hundred dollars of tax¬ 
able property within the county may be assessed b^ the county court annually, 
at the September term; tax book; but the tax system as a whole may be 
adopted. 

3(J. The labor system, modus operandi — tax list to be made by the clerk 
and delivered through the sheriff to the supervisor of every road district, 
under prescribed penalties for failure, etc. 

37. Supervisor to give three days’ notice; work, how performed, etc. 

38. The tax list; notice to be given; work, how performed, etc. 

39. Incorporated cities, towns and villages; the charter to govern in the 
matter of higluvay labor and taxes. 

28. The county courts of the several counties in this 
state not under township organization, shall have and 


o* 


i § 27, act April 18, 1873. 


42 


THE HIGHWAY SYSTEM. 


[Sec. II. 


are hereby vested with general superintendence over 
the public roads within their respective counties, and 
are hereby authorized to cause new roads to be located 
and made, and to alter or vacate public roads within 
their respective counties, in the manner in this act 
provided and pointed out. 1 

29. The county court, in counties not under township 
organization, of each county, shall, at their December 
term, or as soon thereafter as may be, in each and every 
year, lay out and divide their respective counties into 
such road districts as they may deem convenient and 
proper, defining accurately the boundaries of said dis¬ 
tricts; and they shall appoint one supervisor in each 
district, who shall serve one year, and continue in office 
until a successor shall be appointed: Provided , that 
the county courts of all counties not under township 
organization shall, at their first meeting after the pas¬ 
sage of this act, appoint supervisors, and divide their 
respective counties into districts, as contemplated in this 
section. 2 

Division of County into Road Districts and Appointment of 

Supervisors. 

State of Illinois ,) The Board of County Commissioners, 

-County, f s in session December, A. D. 18 . 

[. Placita .] Present: A B, C D, and E F, Commissioners, 

L M, Sheriff, O P, County Clerk. 

At the present session of the Board of County Commissioners of 
the County of , in the State of Illinois, pursuant to 

statute in such case made and provided: Ordered, That said 
County be and hereby is divided into road districts, as follows • 
Township number , north of range , P. M., 

shall be road district number one; township number , 

north of range , P, M., shall be road district number 

two, {and so on, describing and locating each district according to 
government survey ,) and that the-following named persons be and 

1 § 28, act April 18, 1873; § 10, c. 93, id. * § 2 9, id. See § 11, c. 93, id. 


% 



Sec. II.] 


UNDER PRIMARY ORGANIZATION. 


43 


hereby are appointed respectively for such districts, as follows: 
B A, Supervisor for road district number one, B E for road 
district number two, etc. 

A true record attest: 

-, County Clerk. 

30. It shall be the duty of the clerk of the county 
courts in each county, to make out and deliver to the 
sheriff written notices to all the supervisors, as aforesaid, 
within ten days after such appointment has been made, 
informing them of their said appointment, describing 
the bounds of their respective districts, and the roads 

therein : and the said sheriff shall immediatelv deliver 

' •/ 

the said notices to the persons to whom the same shall 
be directed, respectively; and if any supervisor shall 
refuse to accept his said appointment, the sheriff shall 
return the said notice to the clerk who issued the same, 
noting such refusal on the back thereof. But if the 
said supervisor shall agree to accept the same, such 
supervisor shall, within fifteen days thereafter, return 
to the clerk of the county court a list of the names 
of all persons residing within the road district liable 
to be taxed for road purposes; and the said sheriff 
shall notify the said clerk of such acceptance. And 
the said sheriff shall, in all cases, make return of accept¬ 
ance or refusal within twenty days after the delivery 
to him of the notice aforesaid. For any failure on the 
part of the clerk to make out and deliver to the sheriff* 
any one of the notices required by this section he 
shall be fined in the sum often dollars; and the sheriff* 
shall incur the same penalty for a failure to deliver 
any one of said notices in the manner and within the 
periods herein prescribed : Provided , that supervisors 
shall not be required to make such return, unless the 
county court shall have levied a tax according to the 
provisions of this act: Provided , f urther , that any 




44 


THE HIGHWAY SYSTEM. 


[Sec. II. 


county court or board of county commissioners are 
hereby authorized and empowered to open and keep 
in good repair all public highways in their respective 
counties, and to build and keep in repair all bridges, 
either by taxation in whole or in part, or by labor in 
part and taxation in part, as they may elect. 1 

NOTICE OP APPOINTMENT TO SUPERVISORS. 

State of Illinois,} . , Office of the Board of County Commis- 
-County, f ss ‘ sioners of said County. 

The People of the State of Illinois to 
You are hereby notified that at the session of said 

Board, and on the day of A. D. 18 , you were 

appointed Supervisor of road district No. , in said County, 
which is described as follows, to wit: 

(Here describe the Supervisor's district.) 

Witness, N O, County Clerk of said County, and the seal of said 
Board at this day of A. D. 18 . 

[seal.] - , County Clerk. 

To the Sheriff of said County to serve and return. 

Sheriff's Return of Acceptance Indorsed. 

State of Illinois ,) 

-County. } ss ' 

This is to certify that at on the day of 

A. D. 18 , I served the within notice on B A, Super¬ 

visor therein named, by delivering to and leaving with him a true 
copy thereof, who then and there accepted the appointment of 
Supervisor of road district number , of said County. 

A F, Sheriff of said County. 

Dated at A. I). 18 . 

Sheriff’s Return of Ref usal Indorsed. 

State of Illinois ,) 

-County. } ss ' 

This is to certify that at on the day of 

A. D. 18 , I served the within notice on BA, Super¬ 

visor therein named, by delivering to and leaving with him a true 
copy thereof, who then and there refused to accept the appoint¬ 
ment of Supervisor of the first road district of said County. 

A F, Sheriff of said County. 

Dated at A. D. 18 . 

1 § 30, act April 18, 1873. See § 12, c. 93, id. 







Sec. II.] 


UNDER PRIMARY ORGANIZATION. 


45 


31. When any person shall refuse to accept the 
appointment as supervisor, or after having accepted the 
same, shall fail to perform the duties thereof, he shall 4 be 
lined five dollars, to he appropriated to road purposes: 
Provided, that the county court may excuse any super¬ 
visor from the payment of said fine, upon being satisfied 
that such person ought not to have been appointed. 
The county court shall have power, at any time, to re¬ 
move from office any supervisor who shall fail or refuse 
to perform his duty, and all vacancies shall be filled at 
the term of court at which any removal shall be made 
or vacancy occur. 1 

Order Filling Vacancy. 

B A having refused to accept the appointment of Supervisor of 
the first road district. Ordered, that C D be and hereby is appointed 
to fill the vacancy. 

The clerk will thereupon issue a notice to C D, and the Sheriff 
will serve the same. 

32. It shall be the duty of each supervisor to cause 
all the public roads within his district to he kept well 
cleared, smooth, and in good repair; causing all stumps 
to be cut low, so as to afford at all times a free and 
safe passage to wagons and other carriages along such 
road; to cause bridges and causeways to be made 
wherever the same shall he necessary, and to keep the 
same in repair; and to cause to be erected and kept in 
repair, at the forks or crossing place of every public 
road, a post and guide-boards, with plain inscriptions 
thereon in letters and figures, giving the direction and 
distance to the most noted places to which said roads 
may lead. 2 

1 § 31, act April 18, 1873. See § 13, c. 93, id. 

2 § 32, id. See § 14, c. 93, id. 

A city is grossly derelict in its duty in constructing a passage along a preci¬ 
pice without having sufficient guards for the protection of travelers. It does 


46 


THE HIGHWAY SYSTEM. 


[Sec. II. 


33. Whenever any public road shall be obstructed 
by fallen timber, or in any other manner, and when any 
bridge or causeway shall be destroyed, or become im¬ 
passable or dangerous to travelers, it shall be the duty 
of the supervisor to cause such obstruction to be re¬ 
moved, and to have such bridges or causeways rebuilt 
or repaired ; and for that purpose be shall call out the 
persons bound to labor on the road in bis district, or 
as many of them as may be necessary; but if the per¬ 
sons bound to perform such labor in bis district shall 
have previously performed the number of days required 
by this act, or if the labor due from such persons shall 
not be sufficient, be shall then proceed to hire as many 
laborers or teams as may be necessary to remove such 
obstruction or repair such damages : Provided , that in 
counties electing to keep up roads in their respective 
counties, by taxation, then and in that case the super¬ 
visor shall proceed to hire as many laborers or teams 
as may be necessary to remove such obstructions or 
repair such damages: And provided ’, further , that 
the cost shall not exceed ten dollars; and if the cost 
of such work shall be estimated by said supervisor 
to exceed ten dollars, then he shall report such obstruc¬ 
tion or damage to any one or more of the county com¬ 
missioners, whose duty it shall be immediately to cause 
such obstruction to be removed, or such bridge or 
causeway to be rebuilt or repaired, as the case may be, 
either by ordering the supervisor to hire laborers and 

not require an expert to show that a narrow passage-way along a precipice of 
twelve feet, where a misstep or the slightest accident may precipitate the 
traveler headlong therefrom, is not the degree of safety and security which 
the law requires. 

City of Joliet v. Verley, 35 Ill. 58. 

The rule is, that where the loss is the combined result of an accident and a 
defect, yet if there he no fault or negligence of the plaintiff, if the accident 
he one which common prudence and sagacity could not have foreseen and 
provided against, the town is liable.— Id. 

Chicago v. Gallagher, 44 Ill. 295; City of Lacou v. Page, 48 Ill. 499. 


SEC. II.] UNDER PRIMARY ORGANIZATION. 


47 


teams for mar purpose, or by making a contract with 
some fit person or persons,* as they may deem best; 
and all moneys required to carry any of the provisions 
of this section into effect, shall be paid out of the county 
treasury, on the order of the county court. 1 

34. The county courts of the several counties in this 
state, who shall adopt the system of part tax and part 
labor or all labor, at the December term, annually, 
shall fix and cause to be entered upon the records of 
their courts a certain number of days, not exceeding 
three nor less than two, that each and every able-bodied 
man between the ages of twenty-one and fifty years 
shall labor on some public road within the county dur¬ 
ing the year. And it shall be the duty of the clerk of 
said court to certify the number of days fixed as afore¬ 
said in the notice to each supervisor appointed in said 
county. 2 

Order Fixing the Number of Days’ Road Labor for the Year. 

Ordered, That each and every able-bodied man between the 
ages of twenty-one and fifty years shall labor on some public 
road, within the County, three days during the year A. D. 18 . 

This order should be entered at the December session. 

35. The county court of each and every county, in ad¬ 
dition to the work required in the foregoing section (34), 
may, at the September term, annually, assess a road 
tax of not more than twenty cents on each one hun¬ 
dred dollars’ worth of taxable property, real and per¬ 
sonal, or either, in their counties ; and a column in the 
tax book shall designate the amount of such road tax 
due from each person from whom the same is to be 
collected ; which road tax, assessed on property owned 
by citizens living in incorporated towns of the county, 

i § 33, act April 18, 1873. See § 15, c. 93. R. S. 1845, p. 482. 
a § 34, id .; Sawyer v. City of Alton, 3 Scam. 127. 


48 


THE HIGHWAY SYSTEM. 


[Sec. II. 


and also owned by non-residents of the county, shall 
be collected by the collector as other county revenue, 
and paid into the treasury in like manner; and the 
county court shall appropriate the same on roads and 
bridges as they may deem proper: Provided , that 
counties electing to work under the tax system in 
whole, for road purposes, may levy a road tax not ex¬ 
ceeding forty cents on every one hundred dollars’ 
worth of property, real or personal, as provided in sec¬ 
tion thirty of this act. 1 

Order Assessing Road Tax. 

Ordered, That there be and hereby is assessed a road tax of 
fifteen cents on each one hundred dollars’ worth of taxable prop¬ 
erty, real and personal, in this County. 

This order should be made and entered at the September ses¬ 
sion. 

36. The clerk of the county court, in all counties 
adopting the labor system, in whole or in part, shall, by 
the first day of February in each year, make out a list of 
all persons owing road tax in each road district in the 
county, with the amount of tax due from each person; 
which list shall be by said clerk delivered to the sheriff, 
and by him delivered to the proper supervisor within 
twenty days from the date such list is delivered to the 
sheriff; and any clerk or sheriff who shall neglect or 
fail to perform the duties required in this section 
within the time specified, shall be liable to the penal¬ 
ties stated in section thirty of this act. 2 

Tax List. 

A list of all persons who have been assessed a road tax by the 
Board of County Commissioners of the County of , and 

State of Illinois, for the year 18 , and who are now owing said tax 

either in money or labor in Road District No. in said County. 

1 § 35, act April 18,1873. See §§ 23,24, c. 93, id. 2 § 36, id. See § 24, c. 93, id. 


SEC. II.] UNDER PRIMARY ORGANIZATION. 


49 


Names. 


Amount 

Paid in 

Paid in 

Assessed. 

Money. 

Labor. 


Remarks. 


37. It sliall be the duty of each supervisor in counties 
not levying a tax exclusively for road purposes to call 
on alN able-bodied male persons over twenty-one and 
under fifty years of age, in his district, to perform the 
number of days’ labor due for the year, giving such 
person at least three days’ notice of the time when and 
place where the work is required, and stating what 
description of tools to bring; which notice shall be 
given by the supervisor in person verbally, or by a 
written or printed notice, or by some person appointed 
by him to warn in the hands; in which latter case the 
notice shall be written or printed, and signed by the 
supervisor. The supervisor shall observe the hour 
appointed to meet, that each individual do appear at 
the time with the tool directed to be brought, and 
when on the road, that each person shall work indus¬ 
triously and diligently, doing at least eight hours’ 
faithful labor in each day at such work, and in such 
manner as shall be directed by the supervisor. Any 
person neglecting or failing to attend and do the work 
due on the roads, after being notified as above stated, 
by himself or a substitute equally able as himself, shall 
pay for each day such sum as the county court shall fix 
at the time of fixing the number of days. Should any 
person be idle, not work diligently, be turbulent, 
interrupt other hands, or disobey the supervisor, power 
is hereby given, and it shall be the duty of the super¬ 
visor to discharge said hand from the road ; and for 
each day’s labor which may then be due from such 
person, he shall be bound to pay one dollar and fifty 
cents. 1 

1 § 37, act April 18, 1873. 

Forms of procedure for collection of fines may be found under Sec. II. 
infra ; see also J. AC. 














50 


THE HIGHWAY SYSTEM. 


[Sec. II. 


Supervisor's Notice — Warning to Work. 

State of Illinois ,) ,, Office of the Supervisor of Road District 

—— County, f ss ' number , A. D. 18 . 

To Mr. —— 

You are hereby notified* that there has been assessed against 
you the sum of dollars and cents, road tax for 

the year 18 , and to pay the same at my office on or before the 

day of 18 , or to appear at 

with a {shovel, pick or other tool desired) on the day of 

18 , for the purpose of working out said tax at the 

rate of $ per day, as fixed by the (County Court or) Board of 
County Commissioners. 

-, Supervisor. 

38. The tax list being placed in the hands of the 
supervisor, he shall notify each person residing in said 
supervisor’s district, of the amount due, and that the 
same may he discharged in labor on the road, and shall 
thereupon request payment in money or labor, first 
notifying such person of the time and place, to attend 
and work the same out at the rate of such sum per day 
as the county court may fix, bringing with him such 
tools as may be directed by the supervisor — the labor 
to be performed by the principal or a substitute equally 
able, working at least eight hours each day; and if 
such person shall spend the day in idleness, be turbu¬ 
lent, or disobey the supervisor, he shall be discharged 
from the road, and the balance due shall be collected 
with twenty-five per. cent, advance : Provided , all 
money collected by supervisors for road purposes, 
shall be disbursed on some road within their district. 1 

1 § 38, act April 18, 1873; § 26, c. 93, id. 

Under our constitution the right of taxation cannot he granted either to 
private persons or private corporations. 

Harward v. St. Clair Drain Co., 51 Ill. 130; Hesslhr v. The Drainage Comm’rs, 
53 Ill. 105; Lovingston v. Wider, Id. 302. 

All the personal property of the tax-payer is bound for the payment of 

* The act of April 18, 1873, § 40, makes it the duty of the Supervisor to bring 
suit for all labor and taxes against each person who shall fail to pay or per¬ 
form the same, pursuant to notice. 







Sec. II.] 


UNDER PRIMARY ORGANIZATION. 


51 


39. Where any city or town lias or may become incor¬ 
porated under a special law, or under a general law 
authorizing cities to become incorporated, no requisition 
in labor or money from the citizens thereof, on property 
within said corporation, shall be required to improve 
roads in the county different from the grant in the 
charter, but they shall be required to work and pay a 
tax to improve the streets and roads, and such improve¬ 
ments as shall be specified in the charter, or within the 
limits of the incorporation, so long as the charter or 
incorporation shall remain in full force. In all towns 
and villages not incorporated, the citizens thereof shall 
contribute in labor and by tax, when assessed by the 
county court of the county, in improving the streets 
of the town or village, and the public roads of the road 
district, including the same, under the supervisor. 1 


his taxes, from the time the collector receives his warrant until they shall 
have been paid. The warrant, like an execution, operates as a lien. 

Hill v. Figley, 23 Ill. 418. 

The legislature has no power, under the constitution, to exempt any 
person, or community of persons, from the payment of taxes. But it may 
commute a tax for a payment of money or other equivalent; and it is the 
sole judge of the propriety and value of such equivalent. 

Hunsakcr v. Wright, 30 Ill. 146. 

A poll-tax was inhibited by the constitution of 1818. Nance v. Howard, 
Breese 183. But this was changed by the constitution of 1848. 

A poll or capitation tax, without regard to property, is constitutional; and 
so is the act of the legislature requiring road service or labor from each male 
inhabitant between the ages of twenty-one and fifty years. 

Sawyer v. City of Alton, 3 Scam. 127. 

An assessment of labor, for the repair of roads, is not a tax. 

Town of Pleasant v. Ivost, 29 Ill. 490. 

An assessment of road labor is not a capitation tax. 

Town of Pleasant v. Kost, 29 Ill. 490; Fox v. City of Rockford, 38 Ill. 451. 

1 § 39, act April 18, 1873; § 8, Laws 1847, 112. 

The law of 1847, exempting the inhabitants of town and city corporations 
from road labor outside of their corporate limits, is constitutional; and the 
inhabitants are not bound to labor outside of their corporate limits, or under 
other than their corporate authorities. 

Town of Pleasant v. Kost, 29 Ill. 490. 

Implied powers of cities. —The power to erect and keep bridges in repair 
implies the authority to employ the means necessary and proper to the end; 


52 


THE HIGHWAY SYSTEM. 


[Sec. II. 


IY. Suits for Road Labor and Taxes. 

40. Supervisors to sue in the name of the county, and may testify; appeal 
lies to the circuit court. 

41. The forum may be that of any justice of the peace of the county. 

42. The proceedings are to be instituted and prosecuted in the corporate 
name of the county; formality and technicality as to corporate name not 
essential; the record may be amended to correct it if wrongly pleaded or 
used. 

40. It shall be the duty of the supervisors to sue in the 
name of the county, for all labor and taxes which shall 
be due from each person residing in their respective 
districts, and remain unpaid after notice shall have 
been given and a failure to settle the same, as provided 
in the foregoing sections; and having collected the 
same, shall, without delay, disburse the money to the 
best advantage on public roads in the district to which 
such labor or tax properly belongs. In all cases the 
supervisor shall be competent witness in such suits 
brought as above stated ; and an appeal may be taken 
to the circuit court by either party, as in other cases of 
appeal from justices of the peace. 1 

41. Supervisors are hereby authorized to bring suits 
before any justice of the peace of the county, to recover 
any and all sums due for road labor, road tax, fines 
and forfeitures imposed by this act, which are intended 
to come into the hands of such supervisors for road 
purposes, and to collect, disburse and account for the 
same, suing in the name of the county. 2 

42. All suits, actions and proceedings necessary to be 


and tbe imposition of fines for a willful or negligent injury to such structures 
would not be an improper means of aiding to keep them in repair. 

Korah v. City of Ottawa, 32 Ill. 121. 

School director.— Exempt from road labor, but not from road tax. 

McDonald v. County of Madison, 43 Ill. 22. 

Notice of the time and place to work out tax necessary.—But the tax¬ 
payer may waive the notice expressly, or by acts from which waiver may be 
inferred.— Id. 

1 § 40, act April 18, 1873; § 27, c. 93, id. See J. & C., Taxes. 

2 § 41, id .; § 39, c. 93, id. See J. & C., Fines, Taxes. 


SEC. II.] UNDER PRIMARY ORGANIZATION. 


53 


had on any right or cause of action, for failures to 
perform road labor or pay road taxes, or to enforce any 
contract or promise in reference to the opening or 
repairing of public roads, shall be had in the corporate 
name of the county wherein the right of action accrued: 
Provided , that no suits shall be dismissed on account' 
of informality in the name of the plaintiff; but the 
court may, on application, permit the record to be 
so amended as to place the name-of the proper plaintiff 
on the record. 1 


Y. Miscellaneous Provisions. 

43. Road labor and taxes to be performed, and collected annually by the 
first Monday of December. 

44. Each supervisor to make a report as prescribed, and settle with the 
court annually at the December term. 

45. The supervisors authorized to enter on lands to make ditches, sluices, 
drains and water-courses; damages, how assessed and paid. 

4b. Teams may be employed to haul, plow and scrape, and contracts made 
for tools, implements and machinery by the supervisors, under the direction 
of the county court. 

47. Penalty prescribed for nonfeasance of the supervisor. 

48. The county clerk is to furnish, at each term of the circuit, a list of the 
names of the supervisors to the grand jury. 

49. The supervisors must take good care of plows, scrapers and other tools 
and machinery of the county; penalty for nonfeasance. 

50. One-half of the labor to be done by the tenth day of June in each year. 

51. Compensation of the county clerk, surveyor, viewers and supervisors 
to be reasonable, and paid by allowance and the order of the county court out 
of the county treasury. 

52. Jurisdiction over and concerning state roads conferred on county 
courts. 


43. Every supervisor shall endeavor to collect all road 
and labor tax, and close the work by the first Monday 
in December, annually. And it shall be their duty, 
when such road and labor tax has been paid, either in 
money or labor, to write the word “ paid,” distinctly 
against each name or tract of land on his list on which 

o 

the same has been paid, and snch list shall be delivered 
to the county court, with an affidavit thereto, sworn to 


i § 42, act April 18, 1873; Act June 22, 1852; § 2, Laws 1852, 176. 


54 


THE HIGHWAY SYSTEM. 


[Sec. II. 


before" some justice of the peace of the county, or other 
officer empowered by law to administer oaths, that on 
all tracts of land on such list opposite which the word 
“paid” is written, the tax is paid; and that on all 
tracts of land on such list opposite which the word 
“ paid ” is not written, such tax is due and remains 
unpaid, according to the best of his knowledge and 
belief. 1 

Affidavit of Supervisor to his Return. 

State of Illinois,) 

-County. \ ss ' 

A B, being duly sworn, says, That lie is Supervisor of Road 
District No. 1, in said county, and that on all tracts of land on the 
foregoing list opposite which the word “ paid ” is written the tax 
is paid; and that on all tracts of land on such list opposite which 
the word “ paid ” is not written, such tax is due and remains un- 
oaid, according to the best of his knowledge and belief. 

A B. 

Subscribed and sworn to before me this day of 

A. D. 18 . N. P., J. P. or- Clerk. 

44. At the December term of the county court, annu¬ 
ally, each supervisor shall make a report, showing the 
whole number of davs’ work that has been done in his 
district during the year, by whom done, the amount of 
money by him received, from whom received, for road tax 
or otherwise, due on roads, the amount paid out by him 
in constructing roads, with the vouchers accompanying; 
at which term he shall make a settlement with the 
court, and if a balance should appear in his hands, the 
same shall be disbursed in the district, or added to the 
general road fund, as the court shall order. Supervisors 
may appoint one or more persons to warn in the hands, 
and make an allowance out of the labor tax due from 
such person. 2 

1 § 43, act April 18, 1873; § 28, c. 93, id. 

3 § 44, id. ; § 28, c, 93, id. ; § 2, act Feb, 16; Laws 1865, 111. 




SBC. II.] UNDER PRIMARY ORGANIZATION. 


55 


Supervisor’s Annual Report. 

To the Board of County Commissioners of the Coun ty of 
The undersigned, Supervisor of Road District No. respect¬ 
fully presents the following report of his receipts, expenditures, 
etc., from 18 to 18 . 


I have received 

For real estate and personal property tax* * * § ... 
For road tax,f as per schedule hereto attached, 

marked A. 

For fines and commutations,]; as per schedule 

hereto attached, marked B. 

From all other sources, as follows: {Set forth 
every item) . 


Amount. 


Total. 


Total receipts. 

Total expenditures,§ as per detailed 
schedule hereto attached, marked C.. . 

Balance in hand subject to your order.. . 


REMARKS. 

The whole amount of road tax assessed 

was. 

Less Collector’s commissions. 

Errors and delinquencies on personal 
property tax (or as the case may be) as 

allowed by County Collector. 

Still delinquent. . 


* This amount will be in detail in the tax list as returned, the names of the 
persons paying, and the amounts paid, respectively indicated. See §43, supra, 
being marked “ paid.” 

t This should be detailed in schedule A. 

X This should he detailed in schedule B. 

§ This should be detailed in a schedule or in the report, 
































THE HIGHWAY SYSTEM. 


[Sec. II. 


56 


SCHEDULE C. 

Detailed statement of expenditures* by tlie Supervisor of Road 


District No. , 

from 

18 

to 

18 . 

Date. 

To Whom 
Paid. 

For What 
Purpose. 

No. of 
Voucher. 

Amount. 

Action of Board, “Ap¬ 
proved ” or “ Rejected.” 


I also add pursuant to the statute, the following: 

Detailed statement showing the whole number of days’ work 
that have been done in my district during the past year, to wit: 
From 18 , to 18 . 


Names. 

Where done. 

Days’ Work. 

James Brown 

On the Jackson road 

2 

Levi Brown 

On the Springfield road 

2 

Etc. 


Whole number of days’ 

work 

4 


All which is respectfully submitted. » 

Dated December , A. D. 18 . A B, Supervisor. 

45. The supervisors of the several road districts are 
hereby authorized to enter upon any land adjacent to 
any highway in their respective districts, for the pur¬ 
pose of opening any ditch, drain, necessary sluice or 
water-course, whenever it shall be necessary to open 
a water-course from any highway to the natural water¬ 
courses ; and to dig, open and clean ditches upon said 
land for the purpose of carrying off the water from 
said highways; or to drain any slough or pond on said 
highway: Provided , that unless the owner of such 
land, or his agent, shall first consent to the cutting of 
such ditches, the supervisors shall apply to any justice 
of the peace of the county in which such road is situ¬ 
ated, directed to any constable of said county, com- 

* For every expenditure a receipt should he taken as a voucher. The vouchers 
of the Supervisor should be all carefully arranged and numbered, and attached 
to the schedule to which they respectively belong, and the whole appended 
to the report. 






















Sec. II.] 


UNDER PRIMARY ORGANIZATION. 


57 


manding him to summons the said owner to appear 
before the said justice, at a time and place specified in 
such summons, not less than five nor more than fifteen 
days from the date thereof, for the purpose of having 
the damage assessed which such owner may sustain by 
reason of the digging or opening such ditches or drains. 
The said summons shall be under the hand of such 
justice, and be served in the same manner as summons 
is now served in civil actions before justices of the 
peace. On the return of such summons, a venire, if 
required by either party, shall be issued for a jury as 
in other cases, which jury shall assess such damages 
and render a verdict therefor, which shall be final and 
conclusive of the amount of damages sustained by such 
person; and the amount so awarded shall be paid out 
of the county treasury on the order of the commis¬ 
sioners. And the supervisor shall be warranted and 
is hereby empowered to enter such lands and dig, open 
and clean such drains, ditches and water-courses as afore¬ 
said, for the purposes contemplated in this act; and is 
further authorized to use and employ the road labor 
and money of this district for such purposes: Pro¬ 
vided, that in case the owner of said lands is a non¬ 
resident, service may be had by leaving a copy with 
the occupant or agent, or by notice in same manner as 
prescribed in proceedings for opening roads. 1 

46. Supervisors are hereby authorized to hire teams to 
do the necessary hauling, plowing and scraping; to 
contract for materials for building bridges, causeways, 
erecting guide boards, for making and furnishing road 
scrapers, and repairing roads in discharge of labor and 
road tax due, and so far as funds shall come into their 
possession, procuring said teams, materials, imple¬ 
ments and work, on the best possible terms; but all 

5 § 45, act April 18, 1873; Act March 9, 1867; Laws 1867, 160. 


58 


THE HIGHWAY SYSTEM. 


[Sec. II. 


contracts made under this section, exceeding in amount 
ten dollars, shall be first approved or ordered by the 
county court: Provided , that nothing contained herein 
shall prevent the supervisors from expending, within 
their road districts, the road labor or money collected 
by them in lieu thereof. 1 

47. Any supervisor who neglects to keep the roads in 
his district in good repair, agreeably to the provisions of 
this act, or fails to perform any other duty herein 
required, shall be liable to indictment, and on convic¬ 
tion thereof, shall he fined in a sum not less than five 
dollars and not exceeding fifty dollars, to be expended 
on some road within the district of said supervisor. 2 

48. The clerk of the county court in each county 
shall, at each term of the circuit court, make out and 
furnish the grand jury with the list of the names of all 
supervisors in the county, with the date at which they 
were appointed. 3 

49. It shall be the duty of the supervisors to take good 
care of plows, road scrapers and other implements 
belonging to the county, in their charge; not to lend 
the same, unless to the supervisor, to aid him in con¬ 
structing public roads. Any person who shall violate 
the provisions of this section, shall forfeit and pay a 
fine of not less than three dollars nor more than ten 
dollars. 4 

50. Each and every supervisor shall call out his hands, 
and do a proportion, at least one-half, of the labor due, 
by the tenth day of June in each year, in putting the 
roads and bridges in good repair, and grading the same 
where most needed. 5 

1 § 46, act April 18, 1873; § 29, c. 93, id. 

2 § 47, id. ; § 40, c. 93, id. 

3 § 48, id. ; § 41, c. 93, id. 

4 § 49, id. ; § 5, act Feb. 17; Laws 1847, 112. 

6 § 50, ul.\ § 6, act Feb, 17, 1847; Laws 1847, 112. 


Sec. II.J 


UNDER PRIMARY ORGANIZATION. 


59 


51. Sheriffs, and clerks of the county court, surveyors, 
viewers, and supervisors, shall be allowed a fair and 
reasonable compensation for discharging the duties 
required of them by this act, to be paid out of the 
county treasury on the allowance and order of the 
county courts. 1 

52. All power, jurisdiction and control is hereby given 
to the county court of the several counties of and con¬ 
cerning state roads, located directly by the state, and 
all other roads, and the same shall be opened, improved 
and kept in repair as roads in the counties, subject to 
alteration, change and relocation, as hereinbefore 
pointed out. 2 

VI. The Board of County Commissioners. 

53. Jurisdiction over and concerning state roads conferred on county 
courts; rut after their election the board of county commissioners 
(Const. 1870; § 0, Art.. 10) is to accede to such jurisdiction. 

54. Railroad companies to be notified. 

55. Notices to be served on nearest station agents. 

50. Money collected under the highway act of 1872 to be expended for 
highways. 

57. The act of April 10, 1872, and former conflicting acts, repealed. 

58. Emergent. 

53. The county courts of the several counties of this 
state shall have the supervision and control of all roads 
and public highways within their respective counties, 
and shall make such rules and regulations as may be 
necessary to carry this act into proper effect: “ Pro¬ 
vided , that after the election of the commissioners 
provided in section six (6), article ten (10), constitution 
of this state, the duties herein provided to be discharged 
by county courts shall devolve upon and be discharged 
by the ‘ board of county commissioners.’ 5,3 

54. In addition to the notices now required by law, in 

* § 51, act April 18, 1873; § 42, c. 93, R. S. 489. 

2 § 52, id.; § 11, c. 93, id. ; Laws 1851, 179. 

3 § 53, id. ; § 11, c. 93, id. ; Laws 1851, 179; Const. 1870, art. 10, § 6; 2 Gross, 
143, § 129; § 28, act April 3, 1872, Myers’ Ed. Laws 1872, 436. 


GO 


THE HIGHWAY SYSTEM. 


[Sec. II. 


proceedings for locating, laying out and opening of public 
roads, similar notices shall be served upon any railroad 
compan} r , across or alongside of whose railroad it may 
be proposed to locate a public road: Provided ', that 
this act shall not apply to the proceedings for opening 
streets in towns and cities. 1 

55. The notices, as required by this act, shall be served 
upon the station agent of any such railroad company, 
nearest to the proposed location of such projected pub¬ 
lic road. 2 

5G. Any tax or moneys collected by the sheriff and 
county collectors of the various counties for road and 
bridge purposes, under the provisions of an act entitled 
“ An act in regard to roads and bridges,” approved 
April 10, 1872, shall be distributed to the supervisors 
of the various road districts from which it was collected, 
as near as may be, to be by them expended in improv¬ 
ing the roads in their respective road districts. 3 

57. An act entitled “ An act in regard to roads and 
bridges,” approved April 10, 1872, and in force 
August 15, 1872, and also all other acts or parts of 
acts inconsistent herewith, be and the same are hereby 
repealed. 4 

58. Whereas by the passage of the act in regard to 
roads and bridges, in force August 15, 1872, hereby 
repealed, much confusion has arisen in carrying out and 
enforcing the law of this state in regard to roads and 
bridges, an emergency has arisen requiring this act to 
take immediate effect: therefore, be it enacted that 
this act shall take effect and be in force from and after 
its passage. 5 

1 § 54, act April 18, 1873; Laws 1860, 374, § 1. 

2 § 55, id. ; Laws 1860, 374, § 2. 

3 § 56, id. ; Laws 1872 (Myers’ Ed.), 530-550. 

4 § 57, id.\ Repeal of act of 1872 (Myers’ Ed.), 530. 

6 § 58, id. 


Sec. III.] UNDER TOWNSHIP ORGANIZATION. 


G1 


SECTION III. 

ROADS AND BRIDGES IN COUNTIES UNDER TOWNSHIP ORGANI¬ 
ZATION. 

I. Highways; the Road; Common Carriers, etc. 

II. Commissioners of Highways. 

IH. Overseers of Highways. 

IV. Labor and Commutation. 

V. Fines and Penalties. 

VI. Highway Taxes. 

VII. Accounts. 

VIII. Supervisors. 

IX. Miscellaneous Provisions. 

X. Regulations. 

XI. Altering and Vacating Roads, and Laying Out New Roads. 

I. Highways; the Road; Common Carriers, etc. 

1. Roads laid out pursuant to stale or territorial laws, or dedicated or 
used for twenty years, and not legally vacated, declared to be public high¬ 
ways. 

2. Turn to the right, or pay a fine of five dollars for every oTense, unless 
it be out of the beaten tract or impracticable. 

3. Carriers of passengers prohibited from knowingly employing drunken 
drivers, under a penalty of five dollars each per day. 

4. Passenger may by oath certify a case of actual drunkenness to his em¬ 
ployer, and cause the discharge of the driver. 

5. Running of horses or carriage upon any occasion prohibited, and made 
a misdemeanor; penalty, a fine not exceeding ten dollars, or imprisonment 
not exceeding sixty days. 

6. Carriers of passengers to hitch or securely fasten their horses. 

7. Carriers of passengers held liable for injuries. 

8. “ Carriage ” defined — every vehicle used for the transportation of either 
passengers or goods. 

9. City ordinances relative to hacks and carriages not affected hereby; 
jurisdiction of justices of the peace to two hundred dollars. 


1. All roads within this state, which have been laid 
out in pursuance of any law of this state, or of the late 
territory of Illinois, or which have been established by 
dedication or user for twenty years, and which have 
not been vacated in pursuance of law, are hereby 
declared to he public highways. 1 

2. Whenever any persons, traveling with any car- 

1 § 1. An act in regard to roads and bridges in counties under township 
organization, approved and in force April 11, 1873. 

See Secs. I, II, supra, and compare pp. 8-11, supra , and §§ 2-9 of this act. 


62 


THE HIGHWAY SYSTEM. 


[Sec. III. 


riages, shall meet on any turnpike road or public highway 
in this state, the persons so meeting shall seasonably turn 
their carriages to the right of the centre of the road, 
so as to permit each carriage to pass without interfering 
or interrupting, under the penalty of live dollars for 
every neglect or offense, to be recovered by the party 
injured: Provided , this section shall not be construed 
to apply to any case, unless some injury to persons or 
property shall occur by the driver of the carriage or 
wagon refusing to turn to the right of the beaten track; 
nor shall it be construed to extend to a case where it 
is impracticable, from the nature of the ground, for the 
driver of the carriage or wagon to turn to the right of 
the beaten track. 1 

8. bTo person owning any carriage, running or travel¬ 
ing upon any road in this state, for the conveyance of 
passengers, shall employ, or continue in employment, 
any person to drive such carriage who is addicted to 
drunkenness, or the excessive use of spirituous liquors, 
and if any such owner shall violate the provisions of this 
section, after he shall have had notice and reasonable 
proof that such driver is addicted to drunkenness, he 
shall forfeit at the rate of five dollars per day for all 
the time during which he shall thereafter have kept 
any such driver in his employment. 2 

4. If any driver, whilst actually employed in driving 
any such carriage, shall be guilty of intoxication to 
such a degree as to endanger the safety of the passen¬ 
gers in the carriage, it shall be the duty of the owner 
of such carriage, on receiving written notice of the 
fact, signed by any one of said passengers, and certified 
by him, on oath, forthwith to discharge such driver 
from his employment; and every such owner who shall 
retain or have in his employ, within three months after 


1 § 2. act April 11, 187:). * § 8, id. 


Sec. III.] UNDER TOWNSHIP ORGANIZATION. 


the receipt of sucli notice, any driver who shall have 
been so intoxicated, shall forfeit at the rate of five dol¬ 
lars per day for the time during which he shall keep 
any such driver in his employment after receiving such 
notice. 1 

5. No person driving any carriage upon any turnpike 
road or public highway within this state, with or with¬ 
out passengers therein, shall run his horses or carriage 
(or permit the same to run) upon any occasion, or for 
any purpose whatever; and every person who shall 
offend against the provisions of this section, shall be 
deemed guilty of a misdemeanor, and on conviction 
thereof, shall be fined not exceeding ten dollars, or 
imprisoned not exceeding sixty days, at the discretion 
of the court. 2 

6. It shall not be lawful for the driver of any car¬ 
riage used for the purpose of conveying passengers for 
hire, to leave the horses attached thereto while passen¬ 
gers remain therein without first making such horses 
fast with a sufficient halter, rope or chain, or by placing 
the lines in the hands of some other person, so as to 
prevent their running; and if any such driver shall 
offend against the provisions of this section, he shall 
forfeit the sum of twenty dollars, to be recovered by 
action, to be commenced within six months; and 
unless the amount of such recovery be paid forthwith, 
execution shall be immediately issued therefor. 3 

7. The owners of every carriage running ujion any 
turnpike road or public highway, for the conveyance 
of passengers, shall be liable, jointly and severally, to 
the party injured, in all cases, for all injuries and dam¬ 
ages done by any person in the employment of such 
owners as a driver, while driving such carriage, to any 
person, or to the property of any person; and that, 

i § 4, act April 11, 1873. 2 § 5, id. 3 § f>, id. 


64 


THE HIGHWAY SYSTEM. 


[Sec. III. 


whenever the act occasioning snch injury or damage 
be willful, negligent or otherwise, in the same manner 
that such driver would be liable. Any driver of any 
mail stage coach, or any other vehicle for the convey¬ 
ance of passengers, willfully offending against the 
provisions of this act, shall be deemed guilty of a mis¬ 
demeanor, and on conviction thereof, shall be impris¬ 
oned not exceeding four months, or fined not exceeding 
three hundred dollars. 1 

8. The term “ carriage,” as used in this act, shall be 
construed to include stage coaches, wagons, carts, 
sleighs, sleds and every other carriage or vehicle used 
for the transportation of passengers and goods, or 
either of them. 2 

9. Nothing contained in this act shall interfere with 
or affect any law concerning hackney coaches or carriages 

1 § 7, act April 11, 1873. 

^ § 8, id. 

§§ 1 to 8 are almost identical with the New York Statute. 

1 R. S. N. Y. 695 ; §§ 1 to 8. 

The proviso of § 1 of our law is not in the N. Y. law, but it is substantially 
the result of litigation in New York, as the following cases abundantly attest: 

The law of the road. See pp. 6 to 8, supra ; see 1 R. S. N. Y. 695, § 1. 

“ Seasonably turn to the right ”—that is, shall turn iu time not to retard the 
progress*of the other. Brooks v. Hart, 14 N. H. 307. 

On the wrong side, the person who is, assumes the risk of all experi¬ 
ments, and is bound to use greater care than if on the right side. — Id. 

He may excuse himself by showing that he was drawing up to his stopping 
place, or to water his horse, or to turn out of the road. 

Burdick v. Worrall, 4 Barb. 596. 

The roughness of the road on the right side is no excuse, unless so great 
as to present a serious obstacle to its use. 

Earing v. Lansing, 7 Wend. 185. 

“ Center of the road ” means the center of the worked part of the road, not 
the smooth, or most traveled part, though the whole of the most traveled part 
be on the one side.— Id. 

When the rule does not apply.— The law requiring parties to turn to the 
right does not apply when they meet on a street railway. Whichever side is 
the safest may be taken. 

Hegan v. Eighth Av. R. R. C'o., 15 N. Y. 380. 

It does not apply to foot passengers. 

Dudley v. Bolles, 24 Wend. 465; Grant v. City of Brooklyn, 41 id. 384. 

Nor to those traveling in the same direction. 

A foot passenger may walk in the wagon way, though there be a good 


SEC. III.] UNDER TOWNSHIP ORGANIZATION. 


65 


in any of flie cities of this state, nor interfere with nor 
affect the laws or ordinances of any such city for the 
licensing or regulating such coaches or carriages. Jus¬ 
tices of the peace shall have jurisdiction in all cases 
arising under this act, where the penalty does not 
exceed their jurisdiction. 1 


II. Commissioners of Highways. 

10. To have the care and superintendence of highways and bridges. Their 
duties specified: 

1. To direct repairs of highways, and cause bridges to be built. 

2. To lay out, regulate, alter or vacate roads. 

3. To have highways sufficiently described of record, in the town 

clerk’s office. 

4. To see that highways and bridges are kept in repair. 

5. To divide their town into road districts according to law. 

6. To apportion the inhabitants to such districts. 

7. To cause the overseers of highways to warn persons to work on 

highways, but not allow landmarks to be disturbed. 

8. To take care of the tools, implements and machinery, of highway 

labor belonging to their town. 

9. To purchase the necessary tools, implements and machinery for 

such work. 

10. To erect and keep in repair at forks and crossings, finger or guide 

boards; extirpate thistles and other noxious weeds; dig and keep 
wells; make watering places for teams at convenient points, etc. 

11. Their first meeting; treasurer to be chosen from their number; his 

duties; to give bond and file the same. 

12. To render a detailed account to the board of town auditors. 

13. First meeting of the commissioners to take place according to 

mutual agreement, at the town clerk’s office, within ten days 
after they are chosen; other meetings to be held as they may 
think proper. 

14. Town clerk to furnish lists filed by the overseers, upon which 

highway labor and road tax are to be ascertained, estimated and 
assessed. 

15. Able-bodied male inhabitants, of the age of twenty-one years and 

upwards to fifty years, to labor on the highways not less than 
one nor more than three days in each year. 

sidewalk; but he must use due care, and he is entitled to exercise of reason¬ 
able care from the persons driving on the road. 

Coombs v. Parrington, 42 Me. 332. 

The horse must be properly managed; ordinary care must be used. 

Claflin v. Wilcox, 18 Vt. 605; Center v. Finney, 17 Barb. 94. 

The horse must not be vicious. 

Sullivan v. Scripture, 3 Allen 564. 

The harness must be good, and the carriage road worthy. 

Smith v. Smith, 2 Peck 621. 

1 § 9, act April 11, 1873. 


3* 


66 


THE HIGHWAY SYSTEM. 


[SEC. III. 


16. Road taxes to be assessed on real and personal property. 

17. Tax lists, how to be made and filed. 

18. Copies to be made, authenticated and delivered to the overseers 

respectively. 

19. Omissions to be supplied and additions made by the overseers. 

20. Private roads may be annexed to highways, and work done thereon 

credited to those who perform it. 

21. Notice of the amount of road tax assessed to be posted on town 

house door, within ten days after the assessment. 

22. Penalties for non-feasance or mis-feasance prescribed. 

10, The commissioners of highways in the several 
towns in this state shall have the care and superintend¬ 
ence of highways and bridges therein, and it shall be 
their duty: 

First — To give directions for the repairing of roads 
and bridges in their respective towns, and to cause the 
building of bridges when the public interests or neces¬ 
sity require it. 1 

Second■ —To lay out and establish roads, to regulate 
the roads already laid out, and to alter or vacate such 
roads, as they or a majority of them shall deem proper, 
as hereinafter provided. 2 

Third — To cause such roads used as highways as 
have been laid out, or dedicated to public use, but not 
sufficiently described, and such as have been used for. 
twenty years, but not recorded, to be ascertained, 
described and entered of record in the town clerk’s 
office. 3 

Fourth — To cause the highways and bridges which 
are or may be erected over streams intersecting high¬ 
ways, to be kept in repair. 4 

1 § 10, act April 11, 1873; Bartlett v. Crozier, 17 Johns. 452; see § 69, infra. 

2 § 10, id. ; Colden v. Thurber, 2 Johns. 424; Talmage v. Hunting, 29 N. Y. 447; 
Davenpeck v. Lambert, 44 Barbour 596. 

3 § 10, id.; Walker v. Caywood, 31 N. Y. 51; People v. Judges of Cortlandt 
County, 24 Wend. 491. 

4 § 10, id.; Bartlett v. Crozier, 17 Johns. 449; Hyatt v. Trustees of Rondout, 
44 Barb. 391; Dygert v. Schenck, 23 Wend. 446; Ireland v. Oswego etc. Plank 
Road Co., 13 N. Y. 531; People v. Comm’rs of Hudson, 7 Wend. 474; Garling- 
house v. Jacobs, 29 N. Y. 303; Barker v. Loomis, 6 Hill 619. 

Organized townships, established by law as civil divisions of counties 


Sue. I1I.J UNDER TOWNSHIP ORGANIZATION. 


07 


ORDER ASCERTAINING AND DESCRIBING ROAD. 

Whereas a road, used as a highway in the town of 
in the County of , leading from the 

was laid out by the Commissioners of Highways of the said town, on 
the tenth day of June, 1850, but not sufficiently described: (or 
has been used as a public highway for twenty years last past, but 
not recorded .) 

Now, therefore, we, the undersigned, Commissioners of said 
town, having met at the house of , in said town, 

for the purpose of causing said road to be ascertained, described 
and entered of record in the Town C16rk’s office, all the said Com¬ 
missioners being present, and having deliberated (or all the said 
Commissioners having been duly notified to attend this meeting for 
the purpose of deliberating) on the subject embraced in this order, 
do hereby order that the said road be ascertained, described and 
entered of record. And the said Commissioners, having caused a 
survey of the said road to be made, do further order that said 
road is hereby ascertained and described according to the said sur¬ 
vey, being as follows : Beginning at (insert survey)* And it is 
further ordered that the line above described be the centre line of 
the said road, and that the said road be of the width of rods. 

In witness whereof, the said Commissioners have hereunto sub¬ 
scribed their names the day of , 18 . 


Commissioners of High ways. 

Fifth —To divide their respective towns into so 
many road districts as they shall deem convenient, by 
writing, under their hands, to be lodged with the town 
clerk, and by him to be entered in the town book. 
Such division to be made annually, if they shall think 


merely, are not liable, in their corporate capacity, to a private action for 
damages occasioned by their neglect to keep their public highways in repair. 
Bussell v. The Town of Steuben, 57 Ill. 35; see also The Town of Waltham v. 

Kemper, 55 Ill. 346. 

It was decided in the case of White, Adm’r. v. The County of Bond, 58 
Ill., that a county was not liable, in its corporate capacity, to a private action 
for injury resulting from a defective highway. 

The Commissioners in New York are not liable at the suit of an individual 


* See Tower v. Pitstick, 55 Ill. 117. 









68 


THE HIGHWAY SYSTEM. 


[SEC. III. 


it necessary; and in all cases to be made at least ten 
days before the annual town meeting. 1 

ORDER DIVIDING TOWN INTO ROAD DISTRICTS. 

The undersigned, Commissioners of Highways of the town of 
, in the County of , having met 

and deliberated on the subject embraced in this order, all said 
Commissioners being present, and having deliberated thereon (or 
all said Commissioners having been duly notified to attend here for 
the purpose of deliberating thereon ), do hereby order that the said 
town be and the same is hereby divided into ten road districts, as 
follows, to wit: 

District No. 1 shall comprise all that part of the said town lying 
north of the south line of the road leading from the dwelling- 
house of* to the east line of said town, and all 

the inhabitants residing in said district, and all those residing on 
the said road above mentioned, liable to work on highways, are 
hereby assigned to work in said district No. 1. (If any out of 
said district be assigned to work therein , insert .) And the follow¬ 
ing inhabitants, residing out of said district, are hereby assigned 
and required to work therein, to wit: J C, etc., and all persons 

who has sustained an injury by reason of their neglect to keep the highways 
and bridges in a proper state of repair. 

Bartlett v. Crozier, 17 Johns. 437; West v. Trustees of Brockport, 16 N. Y. 161; 

Hickok v. Trustees of Plattsburgh, 16 N. Y. 161 ; yer contra , Adsit v. 

Brady, 4 Hill 630; Smith v. Wright, 24 Barb. 170; Robinson v. Chamberlain, 

34 N. Y. 380. 

They may, however, be indicted for such neglect. 

People v. Corporation of Albany, 11 Wend. 539; Garlinghouse v. Jacobs, 29 

N. Y. 305; Wilson v. Mayor of N. Y., 1 Denio 599. 

A town is in no event liable to a civil action for injuries sustained through 
the negligence of its officers to keep the highways in repair. 

Morey v. Newfane, 8 Barb. 645; Town of Galen v. Clyde, 27 id. 543. 

But incorporated cities and villages are liable. 

Conrad v. Trustees of Ithaca, 16 N. Y. 158; Ilickok v. Trustees of Plattsburgh, 

16 N. Y. 161; Wendell v. Mayor of Troy, 39 Barb. 329; Hyatt v. Trustees of 

Rondout 44 id. 385. 

1 § 10, act April 11, 1873. 

The order dividing the town into road districts must be made upon a 
meeting and conference of all the commissioners, though the signature of two 
will be sufficient. Where two only sign, however, the order should state that 
it had been made upon a meeting and conference of all the commissioners, or 
that the third had been duly notified to attend, for the particular purpose of 
making a division of the town. 

1 New York R. S. § 125; People v. Williams, 36 N. Y. R. 441. 


* It were better, perhaps, to divide according to the U. S. land survey. 




SEC. III.] UNDER TOWNSHIP ORGANIZATION. 


69 


residing with them on their farms, and liable to work on high¬ 
ways, are assigned to the said district No. 1. 

District No. 2, etc. (proceed in like manner till all are described.) 
In witness whereof, we have hereto subscribed our names this 
day of April, 1870. -, 


Commissioners of Highways. 

Sixth — To assign to eacli of the said road districts 
such of the inhabitants liable to work on highways as 
they shall think proper, having regard to proximity of 
residence as much as may be. 

Seventh —To require the overseers of highways, 
from time to time, and as often as they shall deem 
necessary, to warn all persons to work on highways to 
come and work thereon, with such implements, car¬ 
riages, plows and teams as they may have; and the 
said commissioners, or any of them, shall direct and 
see that persons working or repairing the highways 
leave undisturbed all stones or other monuments 
marking sectional or other corners, which may be in 
* the public roads worked or repaired by them. 

Eighth — To take possession of and keep all scrapers, 
plows, and other tools belonging to their town, 
wherever the same may be found, and not allow the 
same to go to waste, and not to lend the same, except 
to persons employed by them to work on the roads by 
contract or otherwise. 

Ninth — To purchase for use upon highways such 
necessary tools, implements and machinery as may be 
necessary. 

Tenth — To cause to be erected and kept in repair, 
at the forks or crossing place of the most important 
public roads, a post and guide boards, with plain 
inscriptions thereon in letters and figures, giving 
directions and distances to the most noted places to 








70 


THE HIGHWAY SYSTEM. 


[Sec. III. 


which such road may lead; to prevent thistles, burdock, 
cockle-burs, mustard, yellow dock, Indian mallow and 
jimson weed from seeding, and to extirpate the same 
so far as practicable, and to prevent all rank growth of 
vegetation in the public highway, so far as the same 
may obstruct public travel ; and the said highway 
commissioners may, in their discretion, sink and con¬ 
struct wells, with a suitable pump or other suitable 
fixture, and a water-trough attached thereto, and keep 
the same in repair, for public use for watering teams, 
at the intersection of the most important roads in their 
towns or road districts; and they may also adopt any 
other suitable and convenient mode of supplying the 
water in troughs conveniently situated on the public 
highways for public use,* at other points than at such 
intersections ; and the cost of such improvements shall 
be paid out of the road and bridge funds of such town. 1 

11. At the first meeting of the commissioners of high¬ 
ways, after they shall have been duly elected and 
qualified, they shall proceed to choose one of their 
number as treasurer. The treasurer so chosen shall 
receive and have charge of all moneys raised in the 
town for the support and maintenance of roads arid 
bridges. He shall hold such moneys, at all times, 
subject to the order of the commissioner of highways, 
and shall pay them over upon their order, or a majority 
of said commissioners, and not otherwise. He shall 
execute bond, with good and sufficient security, in 
such manner as the supervisor and town clerk shall 
determine, conditioned for the faithful discharge of his 
duties as such treasurer, and that he will honestly and 
faithfully account for and pay over upon the order of 
the commissioner of highways, all moneys that shall 
come to his hands by virtue of his said office; which 


1 § 10, act April 11, 1873. 


SEC. III.] UNDER TOWNSHIP ORGANIZATION. 


71 


bond shall be payable to the supervisor of the town 
and his successor in office, and be approved by the 
supervisor and town clerk, and tiled in the town clerk’s 
office. 1 


Bond of Treasurer of Commissioners of Highways, 

Know all men by these presents, That we, 
of in the County of and State of Illinois, 

as principal, and 

of the County and State aforesaid, as sureties, are held and firmly 
bound unto A B, the supervisor, and his successor in office, of and 
for the use of the town of in said County, in the penal 

sum of dollars, for the payment of which, well and 

truly to be made, we bind ourselves, our heirs, executors and 
administrators, jointly and severally, firmly by these presents. 

Signed with our hands and sealed with our seals, this 
day of 18 . 

The condition of the above obligation is such. That whereas, 
the above bounden was, on the 

day of 18 , duly chosen Treasurer of the Board of 

Commissioners of Highways of the said town of 
for the current year, has accepted the office, and is about to enter 
upon the performance of its duties : 

Now, therefore, if the said shall faithfully 

discharge his duties as such Treasurer, and shall honestly and 
faithfully account for and pay over, upon the order of the Com¬ 
missioners of Highways of said town, all moneys that shall come 
into his hands by virtue of his said office, then the above obliga¬ 
tion to be void; otherwise to remain in full force and virtue. 

Signed, sealed and delivered in presence of 

-[SEAL.] 

- [seal.] 

- [seal.] 


1 § 11, act April 11, 1873. 

The securities to the bond of a commissioner will be liable only for a 
dereliction in duty during the term for which the commissioner was chosen 
at the time the obligation was entered into, and not for those which happen 
under his reappointment. 

Kingston Mut. Ins. Co. v. Clark, 33 Barb. 196. 

In case of default on the part of the commissioner, in N. Y. the bond is 
to be prosecuted by the supervisor of the town. 

Jansen v. Ostrander, 1 Cow. 070; Fuller v, Fullerton, 14 Barb. 59. 












72 


THE HIGHWAY SYSTEM. 


[Sec. III. 


The above bond of Treasurer of tlie Com¬ 
missioners of Highways of the town of in the 

County of and State of Illinois, approved by me this 

day of A. D. 18 . 

-, Supervisor. 


[Indorsement.] 

Bond of Treasurer of Commissioners of Higlnvays. 

Treasurer of Commissioners of Highways of the town of 

Securities. 

Approved and filed this day of 18 , in the office 

of the Town Clerk of the town of 

-, Town Cleric. 


12. The commissioners of highways of each town shall 
render to the board of town auditors, at their annual 
meeting for auditing the accounts of town officers, an 
account in writing, stating: 

First —The labor assessed and performed in such 
towns. 

Second —The sums received by such commissioners 
for fines and commutations, and all other moneys 
received under this act. 

Third — A statement of the improvements necessary 
to be made on such roads and bridges, and an estimate 
of the probable expense of making such improvement, 
beyond what the labor to be assessed in that year and 
the road tax will accomplish. 

Fourth — Also, a statement, in writing, of all 
expenses and damages in consequence of laying out, 
altering or discontinuing roads. 

Fifth — Also, a statement of the amount received 
from the collector of the town, or from any other 
source, up to the time of such statement, and the man¬ 
ner in which the same, if any sum, has been paid out 
and expended, to whom, and on what account. 1 


1 § 12, act April 11, 1873. 






Sec. III.] UNDER TOWNSHIP ORGANIZATION. 


73 


COMMISSIONERS’ annual account. 

Tlie undersigned, Commissioners of Highways of the town of 
, in the County of , hereby render 

to the Board of Auditors of said town their annual account for the 
year ending 

1. The highway labor assessed in said town for the year ending 

on the said day of was eight hundred 

and ten days, and the highway labor performed in said town 
during the said year was seven hundred and eiglity-nine days , as 
appears by the accounts rendered us by the several Overseers of 
Highways in said town. 

2. The said Commissioners have received, during the said year, 
the following sums of money for fines and commutations under 
the statute relative to highways, to wit : 


Date. 


From whom received. 


On what account. 


Amount. 


3. The following improvements are necessary to be made on 

the roads and bridges in said town, to wit: {specify necessary im¬ 
provements.) The probable expense of making such improve¬ 
ments, beyond what the labor to be assessed and the road tax this 
year will accomplish, is by us estimated at dollars. 

4. The improvements which have been made on and the expen¬ 
ses and damages for the roads and bridges in said town, during 
said year, are {specify their cost etc) And the roads and bridges 
in said town are {in good repair or otherwise .) 

5. They have also received from the collector of the town and 
other sources under said statute, etc. 

Given under our hands this day of 18 . 


) 


Commissioners of Highways. 

13. The commissioners of highways of each town 
shall meet, within ten days after they shall be chosen, at 
the town clerk’s office, on such day as they shall agree 
upon, and afterwards at such other times and places 
as they shall think proper. 1 

1 § 13, act April 11, 1873. 

An order made by two commissioners where there are three iu office 
must show on its face either that the third commissioner met with his asso- 

4 
















74 


THE HIGHWAY SYSTEM. 


[Sec. III. 


14. The town clerk shall deliver the lists tiled by the 
overseers, to the commissioners of highways of the 
town, who shall proceed to ascertain, estimate and 
assess the highway labor and road tax to be performed 
and paid in their town the next ensuing year. 1 

15. Every able-bodied male inhabitant, being above 
the age of twenty-one years and under the age of fifty 
(excepting paupers, idiots, lunatics, and such others as 
are exempt by law), shall be required to labor on the 
highways in their respective road districts, not less 
than one nor more than three days in each and every 
year. 2 

ASSESSMENT OF HIGHWAY LABOK. 

The undersigned, Commissioners of Highways of the town of 
, in the County of , having met 

at , in said town, for the purpose of ascertaining, 

estimating and assessing the highway labor to be performed in 
said town the ensuing year; all the Commissioners being present 
and having deliberated thereon (or all the Commissioners having 
been duly notified to be present at this said meeting, for the purpose 
of deliberating thereon), do hereby ascertain, estimate and assess 
such labor as follows : 

1. The whole number of days’ work assessed for the year is 
twelve hundred, being at least three times the number of taxable 
inhabitants in said town. 

2. Every male inhabitant above the age of twenty-one years 
and under the age of fifty years (excepting paupers, idiots, luna¬ 
tics, etc.), there being four hundred and fifty-three , is assessed three 
days (or tiro days, etc) 

And on the real estate and personal property liable to taxation 
in said town we do hereby assess a road tax of fifteen cents on each 
one hundred dollars’ worth, as valued on the roll for the last year. 

In witness whereof, we have hereto set our hands this 
day of , 18 . -, 


Comm issioners of Highways. 

dates and participated in their deliberations, even if he did not concnr in 
their Conclusions, or that he was notified not only of the intended meeting, 
hut of the particular subject on which it was proposed to deliberate. 

People v. Williams, 36 N. Y. 441. 


1 § 14, act April 11, 1873. 2 § 15, id. 








SEC’. III.] UNDER TOWNSHIP ORGANIZATION. 


75 


Poll Tax Road List. 

State of Illinois, / , , To Overseer 

-County. [ ss ' of Highways for District No. 

in the town of in said County, for the year 18 . 

Below is a list of the names of the persons residing in your dis¬ 
trict who are liable to be assessed for highway labor in the town 
aforesaid, for the year 18 , together with the number of days set 

opposite their names which each peison has been assessed for 
highway labor for said year. 


Names. 


Days. 


Names. 


Days. 


Given under our hands and seals, at the town of 
this day of A. D. 18 . 


, [seal.] Commissioners 
, [seal.] of 

, [seal.] Highways. 


Road District No. 


[Indorsement.] 
Poll Tax Road List. 


Filed in the office of the Town Clerk of the town of 
day of 18 . 


—, Overseer. 

on the 

Town Clerk. 


10. The commissioners of highways shall assess a 
road tax on all real estate and personal property liable to 
taxation of the town, to any amount they may deem 
necessary, not exceeding forty cents on each one hun¬ 
dred dollars’ worth, as valued on the assessment roll of 
the previous year: Provided , that the tax on property 
lying within any incorporated village, town or city, in 
which the streets and alleys are under the care of the 
corporation, shall be paid over to the treasurer of such 
village, town or city, to be appropriated to the 
improvement of roads, streets and bridges, under the 
direction of the corporate authorities. 1 

17. The commissioners of highways shall affix to 
the name of each person named in the lists so fur- 


1 § 16, act April 11, 1873. 























76 


THE HIGHWAY SYSTEM. 


[Sec. III. 


nislied by the overseers, the number of days assessed 
to each person for highway labor, personal property, 
and also a description of each tract of land, and the 
name of the owner; if known, with the valuation 
thereof, as taken from the assessment roll of the 
previous year, and the amount ot road tax assessed 
thereon, in a separate column. The lists so prepared 
shall be subscribed by the commissioners, and depos¬ 
ited with the town clerk, to be tiled in his office. 1 

Land and Personal Road Tax List —For Commissioners to Deposit 

with Town Clerk. 

- County, \ 

Town of - \ 

We, the undersigned, Commissioners of Highways of the said 
town of having proceeded to ascertain, estimate 

and assess the highway labor and road tax to be performed and 
paid in said town the ensuing year, have made out the estimate 
and assessment of the lands situated in Road District No. , 

in said town, with the names of the owners, so far as known to 
us, for road tax, as valued on the assessment roll of last year, to 
wit, A. D. 18 , as follows: 



Names of 
Owners. 

Descrip¬ 

tion. 

s. 

T. 

R. 

A. 

Value 

per 

Acre. 

Total 

Value 

Tax 

No. of 
days if 
paid in 
Labor. 

Value 

Per. 

Prop. 

Tax on 
Per. Prop. 

No. of 
days it 
paid in 
Labor. 

Paid. 








Dol. | cts. 

Dol | cts. 



And we direct the Clerk of the town of 
to make a copy of the foregoing list. 

Given under our hands and seals, at the town of 
this day of A. D. 18 . 


* 

Commissioners of Highways. 
[Indorsement.] 

Land and Personal Road Tax List — For Commissioners to Deposit with Town 

Clerk. 

Road District No. in the town of 

-, Overseer. 

State of Illinois, ) „„ 

-County, f 

Filed in the Clerk’s office of the town of on the 

day of 18 . 


1 § 17, act April 11, 1878. 


, Clerk. 



































SEC. III.] UNDER TOWNSHIP ORGANIZATION. 


77 


18. The commissioners shall direct the clerk of the 
town to make a copy of each list, and shall subscribe 
such copies, after which they shall cause the several 
copies to be delivered to the respective overseers of 
highways of the several districts in which the high¬ 
way labor is assessed. One copy for each overseer 
shall contain the name and number of days assessed 
to each person, the other the real and personal prop¬ 
erty road tax. 1 


The town clerk will make a true copy of each list and add cer¬ 
tificate to each, viz.: 

The foregoing is a true and accurate copy of assessment of road 
tax filed in the office of the Clerk of the town of 
by the Commissioners thereof, except their signatures, which are 
original, on the day of 18 . 

-, Town Clerk. 


[Indorsement.] 

Land and Personal Road Tax List — Town Clerk's Copy to Return to Overseer. 


Road District No. in the town of 

State of Illinois, 

-County, f &s ' 

Filed in the Clerk’s office of the County of 
day of 18 . 


, Overseer. 


on the 


, Clerk. 


19. It shall be the duty of the overseers to add the 
names of persons left out of any such list, and of new 
inhabitants, and to rate the persons so added in the 
same proportion to work on the highways as others 
rated by the commissioners on such list, subject to an 
appeal to the commissioners. 2 

overseers’ assessment of persons omitted. 

The following named persons having been left out of the list 
of persons assessed to work on the highways in Road District No. 

, in the town of , in the County of 

, (or having become inhabitants of Road District No. 
, in the toicn of , in the County of 


i § 18, act April 11, 1873. 2 § 19, id. 









78 


THE HIGHWAY SYSTEM. 


[Sec. III. 


, since the list of assessment of highway lah&r for said 
district was made). 

Now, therefore, I, , Overseer of Highways of 

said district, according to the statute in such case made and pro¬ 
vided, do hereby assess and rate the said persons in proportion to 
their real and personal estate, to work on the highways, as others 
are rated by the Commissioners on such list, subject to an appeal 
to the Commissioners, which said assessment is as follows, viz.: 

Names. No. of days. 

George Brownell. — 

James Kinnear. — 

In witness whereof I have hereto set my hand this 
day of , 18 . 

-, Overseer. 

Appeal to Commissioners from Assessment of Overseers. 

To the Commissioners of Highways of the town of , in the 

county of 

The undersigned having been assessed by the Overseer of Road 
District No. , in said town, days’ labor on 

the highway, on the ground that he is a new inhabitant of said 
district {or that his name has been omitted by the Commissioners in 
said town), and conceiving himself aggrieved by said assessment, 
does hereby appeal from said assessment so made by said Over¬ 
seer to the Commissioners of Highways of said town. 


Dated at this day of 18 . 

20. It shall be the duty of commissioners of high¬ 
ways of each town to credit such persons as live on 
private roads and work the same so much on account 
of their assessment as such commissioners shall deem 
necessary to work such private road, or to annex such 
private road to some of the highway districts. 1 

21. The town clerk shall, within ten days after the 
commissioners of highways have filed in his office the 
amount of road tax assessed on the real and personal 
estate of the towns, post a notice on the outer door of 
the house where the town meeting was last held, 


1 § 20, act April 11, 1873. 








SEC. III.] UNDER TOWNSHIP ORGANIZATION. 


79 


stating the amount of road tax assessed on each one 
hundred dollars’ worth of the real and personal estate 
of the town, and that all persons interested can pay 
the same in labor on the highways, under the direction 
of the overseer of highways, in the district where the 
land or personal property is situated. 1 

Highway Tax — Notice. 

Notice is hereby given, that fifteen cents of road tax for the 
year ending , A. D. 18 , has been 

by the Commissioners of Highways of the town of 
in the County of , and State of Illinois, assessed 

on each one hundred dollars’ worth of real and personal estate of 
said town, and that all persons interested can pay the same in 
labor on the highways, under the direction of the Overseer of 
Highways, in the district where the land or personal property is 
situated. 

Town Clerk’s office, A. D. 18 . - 

-, Town Clerk. 

22. If the commissioners of highways shall refuse 
or neglect to perform any of the duties enjoined on 
them by this act, they shall severally forfeit not less 
than ten dollars nor more than fifty dollars, and may 
be proceeded against, severally or jointly, for the 
recovery of such forfeiture before any justice of the 
peace in the proper county having jurisdiction. 2 

III. Overseeks of highways. 

23. To be elected at the annual town meeting, one for each road district, 
to hold office for the year. 

24. Duties of each of the overseers of highways specified: 

1. He is to keep the highways in his district in order. 

2. To warn persons from whom road labor is due to perform it; see 

that it is performed, and if in time, receipt therefor. 

3. To collect fines and commutation money, and execute the lawful 

orders of the commissioners of highways. 

4. To deliver a poll list within sixteen days after his election to the 

town clerk. 

25. Failure or refusal to serve to vacate the office which by warrant the 
commissioners are to fill. 

26. Warrant to be filed and town clerk to give notice of his appointment 
to the appointed. 

27. Penalties for non-feasance or misfeasance prescribed. 

i § 21, act April 11, 1873. 2 § 22, id, 




80 


THE HIGHWAY SYSTEM. 


[Sec. III. 


23. There shall be chosen, at the annual town meet¬ 
ing in each town, as many overseers of highways as 
there are road districts in the town; and each overseer 
of highways, so chosen, shall be a resident of the road 
district for which he is elected, and shall hold his office 
for one year: Provided , there shall be chosen at the 
annual town meeting in April, 1873, one overseer ot 
highways for each road district, as constituted previous 
to the passage of an act entitled “ Roads and Bridges,” 
approved April 10, 1872. 1 


ORDER FILLING VACANCY IN THE OFFICE OF COMMISSIONER OF 

HIGHWAYS. 


=T' 1 


SS. 


(Township Organization.) 


County of - 

Town of 

Whereas a vacancy has occurred in the office of Commissioners 
of the town of , by reason of the death {or as 

the case may be) of , heretofore elected to said 

office from said town ; 

Now, therefore, by virtue of the power vested in us by the 
statute in such case made and provided, we, the undersigned, 

of said town, in order to fill said vacancy, do 
hereby appoint Commissioner of Highways of 

said town, to hold said office until the next succeeding annual 
town meeting of said town, as provided by law. 

In witness whereof we have hereunto set our hands this 
day of 18 . 


Official Oath. 

State of Illinois ,) 

-County, f ss - 

I, , having been elected to the office of 

in the town of in the County of 

aforesaid, do solemnly swear, that I will support the Constitution 
of the United States, and the Constitution of the State of Illinois, 
and that I will faithfully discharge the duties of my said office, 
according to the best of my ability. 

Subscribed and sworn to before me, this day of 

A. D. 18 . - 


1 § 23, act April 11, 1873 















SEC. Ill.] UNDER TOWNSHIP ORGANIZATION. 81 

[Indorsement.] 

Official Oath of 

Elected 18 , to the office of 

Filed this day of 18 , in the office of the town 

Clerk of the town of 

-, Town Clerk. 

24. It shall be the duty of overseers of highways in 
each town: 

First — To repair and keep in order the highways 
within their several districts for which they shall have 
been elected. 

Second —To warn all persons from whom road 
labor is due to work on the highways, at such times 
and places, within their several districts, as they may 
think proper. The overseers of highways may con¬ 
tract with persons owing poll tax for road purposes, 
to perform a certain amount of labor on any road or 
bridge in their town or road district for the amount 
of such tax; and if the work is done within the time 
that the money should have been paid, the overseer 
shall give such person a receipt for such labor done or 
performed. 

Third —To collect all fines and commutation 
money, and to execute all lawful orders of the com¬ 
missioners of highways. 

Fourth — To deliver to the clerk of the town, 
within sixteen days after their election or appoint¬ 
ment, a list subscribed by such overseers, of the names 
of all the inhabitants in his road district who are 
liable to work on highways. 1 


» § 24, act April 11, 1873 




82 


THE HIGHWAY SYSTEM. 


[8ec. III. 


Overseer's List of Inhabitants Liable to Work on the Highways. 


Overseer’s list of inhabitants liable to work on the highways in 
district No. in the town of 


Town of 


County, 


ss. 


I, Overseer of Highways for Road District No. 

, in said town of , do hereby cer¬ 

tify that the following is a true and correct list of all the inhabit¬ 
ants in said road district, who are liable to work on the highways, 


viz.: 


Names: 

Dated at this day of 18 . 

-:-, Overseer. 


[Indorsement.] 
Overseer's List. 

Road District No. 


Filed in the Clerk’s office of the town of 
day of 18 . 


-, Overseer. 

on the 


, Town Clerk. 


25. If any person chosen or appointed to the office 
of overseer of highways, shall refuse to serve, or if his 
office shall become vacant, the commissioners of the 
highways of the town shall, by warrant, under their 
hands, appoint some other person in his stead; and 
the overseer so appointed shall have the same powers, 
lie subject to the same orders, and liable to the same 
penalties, as overseers chosen at the town meeting. 1 


APPOINTMENT OF OVERSEER IN CASE OF VACANCY. 


d 


ss. 


Town of — 

County of - 

Whereas, a vacancy lias occurred in the office of Overseer of 
Highways for Road District No. , in said town, by rea¬ 

son of the refusal to serve (or as the case may be) of A B. 

Now, therefore, by virtue of the power vested in us by the 
statute in such case made and provided, we, the undersigned, 
Commissioners of Highways of said town, having met and delib¬ 
erated on the subject embraced in this warrant (where only two 


1 § 26, act April 11, 1873. 












SEC. III.] UNDER TOWNSHIP ORGANIZATION. 


83 


sign, add all the Commissioners of Highways of said town having 
met and deliberated, or all the Commissioners, etc., having been 
duly notified to attend this meeting of the Commissioners for the 
'purpose of deliberating on the subject embodied in this warrant), 
do hereby, in order to fill said vacancy, appoint 
Overseer of Highways, of and for said road district No. 
in said town. 

In witness whereof, we have hereto placed our hands this 
day of , 18 . 

_ * 

26. The commissioners making the appointment 
shall cause such warrant to he forthwith filed in the 
office of the town clerk, who shall give notice to the 
person appointed, as in other cases. 1 

27. Every overseer of highways who shall refuse or 
neglect to perform any of the duties hereinbefore enu¬ 
merated, or which may be lawfully enjoined on him 
by the commissioners of highways of his town, shall, 
for every such refusal or neglect, forfeit the sum of ten 
dollars, to be sued for by the commissioners of high¬ 
ways of the town, and when recovered, to be applied 
by them in making and improving the roads and 
bridges therein. 2 

* § 26, act April 11, 1873. 

2 § 27, id. 

In New York tliese duties are to be performed upon the order of the 
commissioners, and no overseer is liable for a neglect of them without such 
order. McFadden v. Kingsbury, 11 Wend. 667. 

But an overseer is liable for not removing obstructions in the highway, 
although not specially required by the commissioners. — Id. 


* This must be indorsed and filed. (§ 26.) 







84 


THE HIGHWAY SYSTEM. 


Sec. Ill.] 


IY. Labor and Commutation. 

28. Overseer to give three days’ notice to person assessed to work on the 
highways. 

29. The person notified required to work, or to commute by paying one 
dollar and fifty cents per diem. 

30. Commutation money to be paid within three days after notice served. 

31. Impressment of teams for such labor. 

32. Substitute may perform the labor, under restrictions. 

33. Idlers, the unfaithful and hinderers declared offenders and liable to be 
fined. 

28. It shall be the duty of overseers of highways to 
give at least three clays’ notice to all persons assessed 
to work on highways, and residing within the limits ol 
their respective districts, of the time and place when 
and where they are to appear for that purpose, and 
with what implements; but no person, being a resi¬ 
dent of the town, shall be required to work on any 
highway other than in the district in which he resides, 
except he resides in a district on a town line, which 
district belongs to an opposite town, and unless he 
shall elect to work in some district where he has any 
land; and in such case he may, with the approbation 
of the commissioners of highways, apply the work 
assessed in respect to such land in the district in which 
the same is situated. 1 

29. Every person liable to work on the highways 
shall work the whole number of days for which he 
shall have been assessed; but every such person, other 
than an overseer of highways, may elect to commute 
for the same, or for any part thereof, at the rate of one 
dollar and fifty cents per day; in which case such 
commutation money shall be paid to the overseer of 
highways of the district in which the person com¬ 
muting shall reside, to be applied and expended by 
such overseer in the improvement of the roads and 
bridges in the same district. 2 

30. Any person intending to commute for his 

1 § 28, act April 11, 1873. 2 § 29, id. 


Sec. III.] UNDER TOWNSHIP ORGANIZATION. 


85 


assessment, or any part thereof, shall, within three 
days after he shall be notified to appear and work on 
the highways, pay the commutation money for the 
work required of him by such notice; and the com¬ 
mutation shall not be considered as complete until 
such money be paid. 1 

31. E very overseer of highways shall have power to 
require a team or a cart, wagon or plow, with a pair of 
horses or oxen, and a man to manage them, from any 
person having the same within his district, who shall 
have been assessed two days or more, and who shall 
not have commuted for his assessment; and the person 
furnishing the same, upon such requisition, shall be 
entitled to a credit of two days for each day’s service 
therewith. 2 

32. Every person assessed to work on the highways, 
and named to work, may appear in person, or by an 
able-bodied man as a substitute, and the person or sub¬ 
stitute shall actually work eight hours in each day, 
under a penalty of twenty-five cents for every hour 
such person or substitute shall be in default, to be 
imposed as a fine on the person assessed. 5 

33. If any person, after appearing, remain idle, or 
not work faithfully, or hinder others from working, 
such offender shall, for every offense, forfeit to the 
town the sum of two dollars. 4 

V. Fines and Penalties. 

84. Fines and penalties prescribed. 

35. Procedure, complaint to be made by the overseer to a justice of the 
peace. 

36. Justice to issue a summons. 

37. The hearing, judgment and execution. 

38. Constable to collect, and pay over to the justice. 

39. Every collected fine a set-olf for one day’s labor; two dollars equal to 
one day’s work. 

40. Excuses of no avail; exemption from labor or commutation by the 
overseer, disallowed. 


1 § 30, act, April 11, 1873. 2 § 31, id. 


3 § 32, id. 4 § 33, id. 


86 


THE HIGHWAY SYSTEM. 


[Sec. III. 


34. Every person so assessed and duly notified, who 
shall not commute, and who shall refuse or neglect to 
appear, as above provided, shall forfeit to the town, for 
every day’s refusal or neglect, the sum of two dollars. 
If he be required to furnish a team, carriage, man or 
implement, and shall refuse or neglect to comply, he 
shall he fined as follows : 

First — For wholly failing to comply with such 
requisition, four dollars for each day. 

Second —For omitting to furnish a pair of horses 
or oxen, one dollar and fifty cents for each day. 

Third —For omitting to furnish a man to manage 
the team, two dollars for each day. 

Fourth — For omitting to furnish a wagon, cart or 
plow, seventy-five cents for each day. 1 

35. It shall be the duty of every overseer of high¬ 
ways, within six days after any person assessed and 
notified shall be guilty of any refusal or neglect, for 
which a penalty or fine is prescribed in this act, unless 
a satisfactory excuse shall be rendered to him for such 
refusal or neglect, to make complaint, on oath, to any 
justice of the peace of the county. 2 

overseer’s complaint for refusal to work, etc. 

State of Illinois, [ , Before Justice of the Peace of 

- County. } ss ' said County. 

A B, being duly sworn, says, that he is Overseer of Highways 
of Road District No. , in the town of 

in said County ; that on the day of 

18 , he gave C D, who resides in said district, and is assessed to 

work on the highways therein, notice to appear on the 
day of aforesaid, with a (state what kind of team or 

implements were required) on the road (state where), to do such 
work ; and that the said C D did not appear nor furnish any one in 
his stead (or did not bring such team or implement as was required, 
stating it; or when he so appeared, was idle, or hindered others 


1 § 34, act April 11, 1873. 2 § 35, id. 



Sec:. lll.J UNDER TOWNSHIP ORGANIZATION. 


87 


from working, or whatever the complaint is), and has not paid the 
commutation money for said work, nor rendered a satisfactory 
excuse for such neglect. \ p 

Subscribed and sworn to before me this day of 

• , Justice of the Peace .* 

3(>. The justice to whom such complaint shall be 
made shall forthwith issue a summons, directed to any 
constable ot the county, requiring nun to summon 
such delinquent to appear within five days before such 
justice, according to law, for such refusal or neglect, 1 

Summons. 

State of Illinois ,) 

-County. J ss ' 

The People of the State of Minois , to any Constable of said County: 

Whereas, the town of in said County, by A B, 

Overseer of Highways of Road District No. , in said 

town, has made complaint on oath before me, a Justice of the 
Peace of said town, that C D, a resident of said road district, and 
assessed to work on the highways therein, after being duly noti¬ 
fied to appear on the day of , with 

{state what team or implements were required) to do such work ; 
and that the said C D {stating the matter of the complaint), and 
has not paid the commutation money nor rendered a satisfactory 
excuse. 

You are, therefore, hereby required to summon the said C D to 
appear before me at my office in the said town, on the 
day of A. D. 18 , at eight o’clock A. M., to show 

cause why he should not be fined according to law for such refusal 
{or neglect or misconduct). 

( j H, Justice of the Peace. 

Dated at this day of 18 . 

Constable’s Return on Summons. 

The within summons, personally served on C D, by reading the 
same to him, this day of 18 . 

J D, Constable. 


1 § 36, act April 11, 1873. 


* The Justice should docket this case like any other suit. See J. & C. 




88 


THE HIGHWAY SYSTEM. 


[Sec. III. 


37. On the day of trial the justice shall proceed to 
hear and.determine the case according to law, for the 
offense complained of, and shall forthwith issue an 
execution under his hand and seal, directed to any con¬ 
stable of the county where such delinquent shall 
reside, commanding him to levy such fine, with the 
costs of the proceeding, of the goods and chattels of 
such delinquent. 1 


State of Illinois, 
-County.* 

The town of- 

vs. 

C D. 



Judgment. 


The said C D, having been duly summoned to appear before 
me, (i ll, the Justice of the Peace to whom the said complaint was 
made, to show cause why he should not he lined, according to 
law, for the refusal (or neglect , or misconduct) set forth in said 
complaint; and no sufficient cause having been shown by said 
C D, I do therefore impose upon the said C D a fine of three dol¬ 
lars for said offense, together with two dollars for the costs of the 
proceedings under the said complaint. 

Gl H, Justice of the Peace. 

Dated at this day of 18 . 


Warrant to Levy Fine. 

State of Illinois ,) 

-County. \ ss ‘ 

The People of the State of Illinois , to any Constable in the said County : 

You are hereby commanded to levy of the goods and chattels 
of C D four dollars and eighteen cents ; being one dollar for line 
imposed by me, for (specify the neglect or misconduct ), as set forth 
in the complaint of A B, Overseer of Highways of Road District 
No. in the said town ; and also three dollars and 

eighteen cents, for the cost of the proceedings on said complaint; 
and bring the said sum of money before me without delay. 

G H, Justice of the Peace. 

Dated at this day of 18 . 


1 § 37, act April 11, 1873. 


* Here precede the docket entries. See J. & C. 









Sec. III.J UNDER TOWNSHIP ORGANIZATION. 


89 


38. The constable to whom such execution shall be 
delivered, shall forthwith collect the moneys therein 
mentioned. He shall pay the line, when collected, to 
the justice of the peace who issued the execution, who 
is hereby required to pay the same to the overseer who 
entered the complaint, to be by him expended in im¬ 
proving the roads and bridges in the district of which 
he is overseer. 1 

39. Every line collected for refusal or neglect to 
appear and work on the highways, shall be set off 
against his assessments or personal labor tax upon 
which it was founded, estimating every two dollars 
collected as a satisfaction for one day’s work. 2 

40. The acceptance by an overseer of any excuse for 
refusal or neglect shall not, in any case, exempt the 
person excused from commuting for or working the 
whole number of days for which he shall have been 
assessed during the year. 3 


VI. Highway Taxes. 

41. Resident owners to be notified ; the three days’ notice; and they may 
pay in road labor or in money. 

42. The word ‘“paid” to be written distinctly against the names on the 
list, and receipts to be given on payment. 

43. Returns of overseer to the supervisor (in Cook county to the county 
board) five days before the annual meeting of the board of supervisors. 

44. Penalties for refusal or neglect to make return prescribed. 

45. At least three-fourths of the road labor actually assessed to be actually 
performed by the first day of October in each year. 


41. It shall be the duty of each of the overseers of 
highways to warn all residents of his district against 
whom a land or personal property road tax is assessed, 
giving them three days’ notice, to w r ork out the same 
upon the highways; and he shall receive such tax in 
labor from everv able-bodied man or his substitute, at 
the rate of one dollar and fifty cents per day. And 

1 § 38, act April 11, 1873. 3 § 39, id. 9 § 40, id. 

4* 


90 


THE HIGHWAY SYSTEM. 


[Sec. III. 


any person or his agent may pay such tax in road 
labor, at the rate of one dollar and fifty cents per day, 
and in proportion for a less amount: Provided , that 
any person may elect to pay such tax to the overseer 
in money. 1 

Highway Tax Notice. 

State of Illinois ,) 

-County, - Office of the Overseer of Highways, 

Town of- ) 18 . 

To Mr. -. 

The Commissioners of Highways of said town have assessed 
against you the sum of dollars tax for highway purposes, 
which tax is now due, and you are hereby notified to pay the 
same at my office the 

day of 18 , (or) to appear at 

on the day of 18 , for the pur¬ 

pose of working out said tax. 


Overseer of Highways. 

Note. — The law makes it the duty of the Overseer to bring suit against all 
persons failing to pay their poll tax within the time specified by law. 


42. It shall be the duty of the overseer of highways, 
when such land tax has been paid, either in money or 
labor, to write the word “paid " distinctly against each 
name or tract on his list, on which the same has been 
paid, and give a receipt for the same, whether paid in 
labor or money, when demanded. 2 

43. Every overseer of highways shall deliver to the 
supervisor of his town, and in Cook county to the 
county board, at least five days previous to the annual 
meeting of the board of supervisors, the lists furnished 

1 § 41, act April 11, 1873. 

Railroad companies. 

People v. Supervisors of Niagara, 4 Hill 20. 

They should, in New York, it is held, be assessed as residents of the 
several lines through which their roads respectively extend. 

People v. Fredericks, 48 Barb. 173. 

2 § 42, id. 







Sec. III.] UNDER TOWNSHIP ORGANIZATION. 


91 


by the commissioners of highways, containing the land 
and personal property road tax, with an affidavit 
thereto, sworn to before the supervisor of the town, or 
some justice of the peace of the county, that on all 
tracts of land on such list opposite which the word 
“ paid ” is written, such tax is paid, and that on all 
tracts of land on such list, opposite which the word 
“paid ” is not written, such tax is due, and remains un¬ 
paid, according to the best of his knowledge and belief. 1 

Overseer’s Return of Delinquent Highway Tax. 

Report of Overseer of Highways of District No. 

, of unpaid road tax for the year 18 , on real 

estate and personal property in said district, to 
Supervisor of the town of in the county of 

Sir: Hereunder written is a list of all the lands of non-resi¬ 
dents, of persons unknown, and of personal property, which were 
taxed on my list the current year, and on which the amount 
assessed by the Commissioners of Highwaysof said town has not 
been paid, and the amount of tax unpaid is as follows: 






Value 

Tax on 

Value 

Tax on 

Names of Owners. 

Description. 

Sec. 

Acres. 

of Real 

Real 

Per. 

Per. 




Estate. 

Estate. 

Prop. 

Prop. 


Note. — This list is required to be returned to the Supervisor of his town at 
least five days previous to the annual meeting of the Board of Supervisors, 
which commences on the second Tuesday of September, annually. Therefore, 
do not fail to return as above stated, under the penalty of the whole amount 
of tax not returned. (1 Gross, 757.) 

State of Illinois,) 

-County, f s ‘ 

\ I, ( Overseer of Highways for Road District No. 

, in the town of , in said County, for 

the year 18 , do hereby solemnly swear that on all the tracts of 

land described in the foregoing list, opposite which the word 
“ paid ” is written, such tax is paid, and that on all tratcs of land 
described in such list, opposite which the word “paid” is not 
written, such tax is due and remains unpaid, according to the 
best of my knowledge and belief. And further, that the personal 


' § 43, act April 11, 1873. 
















92 


THE HIGHWAY SYSTEM. 


[Sec. III. 


property tax set fortli in said list,against which the word “ paid” 
is not written, remains likewise unpaid, according to my best 
knowledge and belief. 


Overseer of Highways of Road District No. , 

in the town of 

Subscribed and sworn to before me, this day of 

A. D. 18 . ' 

-, [seal.] 


Justice of the Peace. 


[Indorsement.] 


Delinquent Road Tax. 

Not paid and returned by the Overseer of Road District No. 
in the town of 

Filed in County Clerk’s office, 18 . 

-, Clerk. 


44. If any overseer shall refuse or neglect to deliver 
such list to the supervisor, as provided in the last pre¬ 
ceding section, or shall neglect or refuse to make the 
affidavit, as therein directed, he shall, for every such 
offense, forfeit the sum of five dollars, and also the 
amount of tax or taxes remaining unpaid, to be re¬ 
covered by the commissioners of highways of the town, 
to be applied by them in improving the roads and 
bridges of such town. 1 

45. It shall be the duty of every overseer ot high- 

wavs to have at least three-fourths of the road labor 

«/ 

assessed in his district worked out or actually expended 

f 

on the highways, previous to the first day of October 
in every year. 2 


VII. Accounts. 

46. Overseer to render to one of the commissioners of highways, on the 
second Tuesday next preceding the annual town meetiag, under oath, an 
account, in writing, containing: 

1. The names of the persons assessed. 

2. The names of those who have worked, with the number of days, 

respectively. 

3. The names of those fined, and the amount of each fine. 

4. The names of those who have commuted, and the manner of the 

expenditure of commutation money. 

5. The amount of uncollected tax returned to the supervisor, as 

required in section forty-three, supra. 


1 § 44, act April It, 1873. 2 § 45, id. 








SEC. III.] UNDER TOWNSHIP ORGANIZATION. 


93 


47. lie shall also then and there account for all moneys in hand, and pay 
the same over to his successor in office. 

48. Penalties for refusing or neglecting to account. 

46. Every overseer of highways shall, on the second 
Tuesday next preceding the time of holding the annual 
town meeting in his town, within the year for which 
he is elected or appointed, render, under oath, to one 
of the commissioners of highways of the town, an 
account, in writing, containing: 

First — The names of all persons assessed to work 
on the highways in the district of which he is overseer. 

Second — The names of all those who have actually 
worked on the highways, with the number of days 
they have actually worked. 

Third — The names of all those who have been 
fined, and the sums in which they have been lined. 

Fourth — The names of all those who have com¬ 
muted, and the manner in which the moneys arising 
from fines and commutations have been expended by 
him. 1 

Fifth — The amount of uncollected road tax which 
he has returned to the supervisors of the town, as 
required in section forty-three of this act. 1 

v 

Annual Return of Overseers of Highways. 

To be made to Commissioners of Highways, previous to tlu 
second Tuesday next preceding the time of holding the annual 
town meeting, under the penalty of five dollars for refusal o? 
neglect. 

State of Illinois ,) 

-County. ^ SS- 

To the Commissioners of Highways of the town of 

Gentlemen: Below please find the annual account required of 
me by section forty-eight of article seventeen of Township Organ 
ization Law, 18G1, and section forty-six of act of April 11, 1873. 


1 § 4(j, act April 11, 1873. 





94 


THE HIGHWAY SYSTEM. [SBC. Ill 


Nrnnes of all Persons 
Assessed to Work on 
Highways in 

Number of 
days actual¬ 
ly worked 
by persons 

Names of 
those who 
have been 
fined and 
the sums. 

Names of all those who 
have commuted, 
and manner in which 
moneys arising from 
fines and commutations 

The amount 
of uncol¬ 
lected Road 

Remarks. 

District 

opposite 
whose 
names the 
Nos. appear. 

See name in 

have been expended. 

Tax return- 

No. , 

are as follows: 

first column 
and sums 
opposite 
in this. 

For name see first col¬ 
umn, and manner oppo¬ 
site the name in 
this column. 

ed to the 
Supervisor. 



{Here insert total.) 

I hereby certify the above account to be true and correct. 
Dated at this day of 18 . 


Overseer of Highways, District No. 

[Indorsement.] 

Annual Return of 

Overseer of Highways for Road District No. 

Filed in the office of the Town Clerk of the town of 
day of 18 . 

47. Every such overseer shall also, then and there, 
render an account, in writing, of all moneys in his 
hands by virtue of his office, and shall also pay over 
the same to his successor in office. 1 

48. If any overseer shall refuse or neglect to render 
such account, or if, having rendered the same, he shall 
refuse or neglect to pay any balance which may then 
be due from him, he shall, for every such offense, 
forfeit the sum of five dollars, to be recovered, with 
the balance of the moneys remaining in his hands, by 
the commissioners of highways of the town, and to be 
applied in making and improving the roads and bridges. 
It shall be the duty of the commissioners to prosecute 
for such penalty, in every instance in which no return 
is made. 2 


on the 
, Clerk. 


VIII. Supervisors. 

49. The supervisor is to receive the list pursuant to section forty-four, 
supra, and lay the same before the county hoard. 

50. Arrearages of road tax returned to he levied and collected with the 
county taxes, and paid over to the commissioners of highways. 


1 § 47, act April 11, 1873. 2 § 48, id. 





















SEC. III.] UNDER TOWNSHIP ORGANIZATION. 


95 


49. It shall be the duty of the supervisors of the 
several towns to receive the list of the overseers of 
highways when delivered, pursuant to section forty- 
four of this act, and to lay the same before the board 
of supervisors of the county. 1 

50. It shall be the duty of the board of supervisors, 
and in Cook county the county board, to cause the 
amount of arrearages of road tax returned by the 
overseer of highways to the supervisors, as provided 
in section forty-three of this act, to be levied on the 
lands returned, and to be collected in the same manner 
that other taxes of the county are levied and collected, 
and to order the same, when collected, to be paid over 
to the commissioners of highways of the town, to be 
by them applied to the construction of roads and 
bridges. 2 

IX. Miscellaneous Provisions. 

51. Compensation of the overseer. 

52. Annual town meeting may require road tax to be collected only in 
money, to be expended by and under the direction of the commissioners. 

53. Town clerk to furnish to the county clerk, before the first day of Sep¬ 
tember, a certified plat of the road districts in his town. 

54. In extending the road taxes the county clerk is to designate the 
district to which it belongs. 

55. County and town collectors to furnish abstract of taxes to the treasurer 
of the commissioners of highways. 

56. Commissioners to pay over the taxes according to the abstracts. 


51. Each and every overseer of highways shall be 
entitled to one dollar and a half per day for every day 
he is necessarily employed in the execution of the 
duties of overseer, exceeding the amount of his high¬ 
way labor and road tax, the number of days to be 
accounted to and audited by the commissioners ot 
highways: Provided , that the number of days to be 

audited shall be left discretionarv with the commis- 

•/ 

sioners of highways. 3 

1 § 49, act April 11, 1873. 2 § 50, id. 3 §51,«/. 


96 


THE HIGHWAY SYSTEM. 


[SEC. III. 


52. The legal voters of any township in the state, 
in counties where township organization has been or 
may hereafter be adopted, may, by a majority vote at 
their annual town meeting, provide that thereafter the 
road tax assessed by the commissioners of highways, 
under the provisions of this act, be collected in money 
only, to be expended by the commissioners of high¬ 
ways in such townships, on roads within their jurisdic¬ 
tion, by such agents or officers as they shall direct, and 
in such manner as they shall direct. 1 

53. The town clerk of each town shall, on or before 
the first day of September next, and annually there¬ 
after (if the boundary line be changed), furnish to the 
county clerk a certified plat of the several road dis¬ 
tricts of his town. 2 

54. In all counties acting under township organiza¬ 
tion, the county clerk, in extending district road tax 
upon the tax books, shall designate to what district 
said tax belongs. 8 

55. It shall be the duty of county and township 
collectors to make out an abstract of the amount of 
district road tax due to each district of the respective 
townships, and deliver the same to the treasurer of 
the commissioners of highways. 4 

56. The commissioners of highways shall pay over 
the district road tax according to the abstracts as 
furnished above, to the various overseers of roads in 
their respective districts, to be applied on the roads of 
said districts. 5 

X. Regulations. 

57. Defacing guide boards, etc. 

58. Obstructions to highways. 

59. Destroying or injuring bridges. 

50. Suits for tines and penalties. 

61. Fines recovered to be paid to the commissioners of highways. 

1 § 52, act April 11, 1873. 2 § 53, id. 3 § 54, id. * § 55, id. 6 § 56, id. 


SEC. III.] UNDER TOWNSHIP ORGANIZATION. 


9? 


62. Shade and ornamental trees, hedges, etc. 

63. Underground crossings. 

64. Fences may be connected, in certain cases, with bridges. 

-65. Public highways to be not less than fifty feet nor more than sixty-six 
feet wide. 

66. Notice — “Five dollars fine for riding or driving on this bridge faster 
than a walk ” — may be put up. 

67. Fine may be imposed. 

68. Overseers may enter upon land adjacent to highways, to open ditches, 
drains, etc. 

57. For destroying or defacing any guide board, 
post or milestone, or any notice or direction put up on 
any bridge or otherwise, the offender shall forfeit a 
sum not less than three dollars nor more than fifty 
dollars. 1 

58. If any person shall injure or obstruct a public 
road by felling a tree or trees in, upon or across the 
same, or by placing or leaving any other obstruction 
thereon, or by encroaching upon the same with any 
fence, or by plowing or digging any ditch or other ojien- 
ing thereon, or by turning a current of water so as to 
saturate or wash the same, or shall leave the cuttings 
of any hedge thereupon, for more than five days, shall 
forfeit for every such offense a sum not less than three 
dollars nor more than ten dollars, and in case of placing 
any obstruction on the highway, an additional sum of 
not exceeding three dollars per day for every day he 
shall suffer such obstruction to remain after he has 
been ordered to remove the same by any of the com¬ 
missioners of highways, complaint to be made by any 
person feeling himself aggrieved: Provided , this 
section shall not apply to any person who shall law T - 
fully fell any tree for use, and will immediately remove 
the same out of the road, nor to any person through 
whose land a public road may pass, who shall desire to 
drain his land, and shall give due notice to the com- 


5 


i § 57. act April 11, 1873. 


98 


THE HIGHWAY SYSTEM. 


[Sec. III. 


missioners of such intention. And provided,further , 
that any commissioners or overseers of highways, after 
having given reasonable notice (to the owners) of the 
obstruction, or person so obstructing or plowing or 
digging ditches upon such road, may remove any such 
fence or other obstruction, fill up any such ditch or 
excavation, and recover the necessary cost of such 
removal from such owner or other person obstructing 
such road aforesaid, to be collected by said commis¬ 
sioners before any justice of the peace having juris¬ 
diction. 1 

59. If any person shall purposely destroy or injure 
any public bridge, culvert or causeway, or remove any 
of the timber or plank thereof, or obstruct the same, 
he shall forfeit a sum not less than three dollars nor 
more than one hundred dollars, and shall be liable for 
all damages occasioned thereby, and all necessary costs 
of rebuilding or repairing the same. 2 

60. All suits for the recovery of any tine or penalty 
under this act, shall be brought in the name of the 
town in which the offense is committed ; and it shall 
be the duty of commissioners and overseers of high¬ 
ways to seasonably prosecute for all tines and penalties 
under this act; but in case of a failure of said officers 
to so prosecute, complaint may be made by any person 
whatever. 8 

61. All tines recovered under the provisions of this 
act, unless otherwise provided, shall be paid over to 
the commissioners of highways of the town where the 
offense is committed, to be expended upon the roads 
and bridges in the town. 4 

62. It shall be lawful for the owners or occupants oi 
land bordering upon any public road to plant shade 

1 § 58, act April 11, 1873. 2 § 59, id. 

3 § 60, id. See §§ 35,36 and 37, supra. 4 § 61, id. 


& 


SEC. III.] UNDER TOWNSHIP ORGANIZATION. 99 

and ornamental trees along and in such road, at a dis¬ 
tance not exceeding one-tenth of the legal width of 
the road from its margin; and also to erect and main¬ 
tain a fence, so long as shall be actually necessary for 
the purpose of raising a hedge on said margin, a dis¬ 
tance of four feet from and within said marginal lines. 1 

63. Any person owning, using or occupying lands 
on both sides of any public highway, shall be entitled 
to the privilege of making a crossing under said high¬ 
way for the purpose of letting his cattle and other 
domestic animals cross said road: Provided , said 
person shall erect, at his own expense, a good and 
substantial bridge, with secure railing on each side 
thereof, and build an embankment of easy grade on 
either side of said bridge; said bridge not to be less 
than sixteen feet wide, and to be approved by the 
commissioners of highways of the town in which the 
bridge is built, and the same to be kept constantly in 
good repair by the owner or occupant of said land, 
subject to their direction : And provided , further , 
that in case such crossing is made on any water-way 
or natural channel for water, and where a culvert or 
bridge is maintained or required for road purposes, 
said owner or occupant shall not be required to pay 
for or construct any more of said crossing than the 
additional cost of such crossing over and above the 
necessary cost of a suitable culvert or bridge for road 
purposes at such place. 2 

64. And where any bridge on a public road is con¬ 
structed over a stream or body of water, where the 
depth or current of water or the nature of the bank 

or banks of such stream or bodv of water is such as to 

«/ 

render a fence on the marginal line of the public road 
impracticable or very expensive to construct and keep 


1 § 62, act, April 11, 1873. 2 § 68, id. 


100 


THE HIGHWAY SYSTEM. 


[Sec. III. 


in repair, the owner of the land bordering on the pub¬ 
lic road shall have the right to connect the road fence 
on either or both banks of the stream or body of water 
to said bridge or any pier or abutment thereof, or to 
any embankment or timber approach to said bridge: 
Provided , that no necessary ford across said stream or 
body of water shall be permanently obstructed thereby: 
And provided, f urther , that any such connecting fence 
shall be constructed by the consent and under the 
direction of the commissioners of highways of the 
town in which the bridge may be located. 1 

65. All public highways laid out by order of the 
commissioners of highways, or supervisors, on appeal, 
shall not be less than fifty feet, nor more than sixty-six 
feet wide. 2 

66. The commissioners of highways of each town 
may, when they shall deem it advisable, put up and 
maintain, in conspicuous places, at each end of any 
bridge in such town, maintained at the public charge, 
a notice, with the following words, in large characters: 
“ Five dollars fine for riding or driving on this bridge 
faster than a walk.” 3 

67. Whoever shall ride or drive faster than a walk, 
over any bridge upon which notice shall have been 
placed and shall then be, shall forfeit to the town, for 
every such offense, the sum of five dollars. 4 

68. The overseers of highways of the several towns 
are hereby authorized to enter upon any land adjacent 
to any highway in their respective districts, for the 
purpose of opening any ditch, drain, necessary sluice 
or water-course, whenever it shall be necessary to 
open a water-course from any highway to the natural 
water-courses, and to dig, open and clean ditches, 


1 §64, act April 11, 1873. 2 § 65, id. 9 § 66, id. 4 § 67, id. 


SEC. III.] UNDER TOWNSHIP ORGANIZATION. 101 

upon said land for the purpose of carrying ofi the 
water from said highways, or to drain any slough 
or pond on said highway: Provided , that unless 
the owner of such land, or his agent, shall first con¬ 
sent to the cutting of such ditches, the overseer of 
highways shall apply to any justice of the peace of 
the county in which such road is situated, for a sum¬ 
mons directed to any constable of said county, com¬ 
manding him to summon the said owner to appear 
before the said justice, at a time and place specified in 
such summons, not less than five nor more than fifteen 
days from the date thereof, for the purpose of having 
the damage assessed which such owner may sustain by 
reason of the digging or opening such ditches or drains. 
The said summons shall be under the hand of such 
justice and be served in the same manner as a sum¬ 
mons is now served in civil actions before justices of 
the peace. On the return of such summons, a venire 
shall be issued for a jury as in other cases in the trial 
of civil actions before justices of the peace, which jury 
shall assess such damages and render a verdict therefor, 
which shall be final and conclusive of the amount of 
damages sustained by such person; and the amount so 
awarded shall be audited, levied and collected in the 
same manner provided in section fourteen, article 
seventeen of the township organization law, and the 
overseer of highways shall be warranted, and is hereby 
empowered, to enter such lands, and dig, open and 
clean such drains, ditches and water-courses as afore¬ 
said, for the purposes contemplated in this act, and is 
further authorized to use and employ the road, labor 
and money of his district for such purposes: Provided , 
that in case the owner of said lands is a non-resident, 
service may be had by leaving a copy with the oceu- 


102 


THE HIGHWAY SYSTEM. 


[Sec. Ill, 


pant or agent, or by notice in tlie same manner as pre¬ 
scribed in section eighty-two (82) of this act. 1 * * 4 


XL Altering and Vacating Roads, and Laying Out New Roads. 

69. Twelve or more freeholders to petition. 

70. Requisites of the petition. 

71. Copies to he posted in three of the most public places in the vicinity. 

72. Commissioners to meet, examine and determine. 

73. Adjournment for not to exceed twenty days in all; procedure prescribed. 

74. Petition to vacate. 

75. Petition for new road. 

76. Damages to be ascertained and order made notwithstanding an appeal 
from a justice of the peace. 

77. Damages may be settled and release received from owners of damaged 
property. 

78. Certificate of doings to be presented to any justice of the peace of the 
county asking for a jury. 

79. The notice of application to be given to the owners. 

80. The jurors and the jury. 

81. Challenge for cause; notice of trial to owners, by the justice. 

82. Unknown owners; notice to be published. 
o3. Service of the notice. 

84. The jury sworn. 

85. The hearing; verdict; rules for estimating damages. 

86. Separate trials may be had. 

87. Final meeting of the commissioners. 

88. All proceedings may be revoked. 

89. Order to be entered if proceedings be not revoked. 

90. In cases where the damages anc agreed on and right of way released, 
order may at once be entered. 

91. Inducements to establish, alter, widen or vacate any road may be 
offered to the commissioners. 

92. Record of the town clerk or a certified copy of papers and records 
prima facie evidence of the regularity of the prior proceedings. 

93. Private roads. 

94. Two years in which to open after entry of the order; limitations. 


i § 68, act April 11, 1873. 

Repairs. —The general rule is, that the public have a right to all the 
earth and materials necessary for the improvement of the road. Such earth 
and materials may be removed from one part of the highway to another, even 
beyond the boundaries of the land opposite which they are taken. 

Fish v. Mayor of Rochester, 6 Paige 272. 

Where a highway crosses or passes alongside of a natural stream, the road 
must be so worked as not to obstruct the natural flow of water. 

People v. Kingman, 24 N. Y. 559; see Plummer v. Sturtevant, 32 Me. 325. 

The overseer may cut down, level, grade and alter every portion of the 
space included in the highway, for the improvement of the road, being only 
responsible for a wanton or malicious injury to the rights of adjacent owners. 
Graves v. Otis, 2 Hill 470; Benedict v. Gort, 3 Barb. 469; Radcliff v. Brooklyn, 

4 N. Y. 203. 


Sec. III.] UNDER TOWNSHIP ORGANIZATION. 


103 


95. Eight mouths allowed to harvest crops, remove fences, etc. 

96. Persons may be paid for work done on private roads. 

97. Roads on town lines; coterminous towns. 

98. Allotment to the several towns interested — the rules of. 

99. Appeal from the verdict of the jury to three supervisors; notices and 
allowance. 

100. Three supervisors to be summoned and to hear the appeal. 

101. Report of their decision. 

102. Costs of appeal, bond, etc. 

103. Majority opinion of the supervisors to prevail. 

104. Appeals where several towns are interested. 

105. Maintenance of roads between coterminous towns. 

106. Roads on state line. 

107. Bridges between several towns or counties. 

108. Joint contracts, how made. 

109. Contribution for expenses, how compelled. 

110. Refusal of commissioners to act; personally liable, when. 

111. Appropriations may be had on proper application from the county to 
build expensive bridges. 

112. Special town meeting may be called to raise money; bonds may be 
issued — modus operandi. 

113. Upon petition of twelve legal voters, surveyor to be employed. 

114. Establishment of a new road on the route of an established road not 
to vacate the prior road. 

115. Bridges, how to be contracted for. 

116. Road tax may be paid by work on bridges. 

117. When road is to pass through inclosure, sixty days’ notice to be given 
to owner or occupant to remove the fences, etc. 

118. Compensation of the commissioners of highways. 

119. Highways laid out to be opened within five years, or deemed vacated. 

120. The highway commissioners to ascertain the amount of money neces¬ 
sary for highways and bridges, and report the same to the supervisor, who 
shall cause the same to be submitted to the county board. 

121. Extending road taxes by the county clerk. 

122. Certificate of the county clerk to the treasurer of the commissioners 
of highways. 

123. Tax to be paid over when collected to such treasurer. 

124. Commissioners of highways to furnish a list of tax-payers of each 
district previous to the first day of October in each year. 

125. Taxes collected under the “Act in regard to roads and bridges,” 
approved April 10, 1872, to be paid over to the treasurer of the commissioners 
of highways for improving roads and bridges. 

126. Act of April 10, 1872, aforesaid, repealed. 

127. Emergent. 


69. The commissioners of highways may alter, widen 
or vacate any road, or lay out any new road in their 
respective towns, when petitioned by any number of 
freeholders not less than twelve, residing within three 


104 THE HIGHWAY SYSTEM. [SEC. III. 

miles of the road so to be altered, widened, vacated or 
laid out.’ 

Petition for Vacating Road. 

State of Illinois, { Town of 

-County. \ 

To the Commissioners of Highways of the town of in the County of 

and State of Illinois : 

The undersigned, freeholders, residing in said town* within 
throe miles of the road known as 

do hereby petition you to vacate 
said road 

And your petitioners pray that you will proceed and vacate said 
road accordingly. 

Dated at this day of 18 

Names : A B, etc. 

[Indoraement.] 

Petition for Discontinuance of Road. 

To discontinue the road from 

Filed in the office of the Town Clerk the day of 

jg -, Town Clerk. 

State of Illinois,) ao 
-County. \ SS ’ 

being duly sworn, doth depore 
and say that he did, on the day of 

A. D. 18 , post up three copies of the within petition, as follows, 

viz.: 

One copy at 

one copy at and 

one copy at 

in the town of in said County, they being three 

of the most public places in said town. 

Subscribed and sworn to before me, this 
day of A. D. 18 . 


i § 69, act April 11, 1873. 


* Twelve freeholders at least of the town in which the road is to ho 
affected or located must sign the petition. The requirements of this section 
will not be met when any portion of the twelve reside out of such town. 

Warnev. Baker, 35 Ill. 382. 















Sec. III.J UNDER TOWNSHIP organization. 


105 


The undersigned, Commissioners of Highways of Road District 
met at on the 

da y of 18 , ten days’ notice of the time and place 

of such meeting having been given, as required by law, to hear 
reasons for and against the vacating of the road described in the 
within petition, as therein prayed, and having personally exam¬ 
ined said road, and heard such reasons as were offered for and 
against vacating the same, we decided that the prayer of said 
petition should be which decision was publicly 

announced. 

Given under our hands, this day of 18 


y 

Commissioners of Highways* 

70. Said petition shall set forth, in writing, a descrip¬ 
tion of the road, and what part thereof is to be altered, 
•widened or vacated, and if for a new road, the names 
of the owners of lands, if known, and if not known it 
shall be so stated, over which the road is to pass, the 
points at which it is to commence, its general course, 
and the place at or near where it is to terminate. 1 

71. Whenever any such number of freeholders deter¬ 
mine to petition the commissioners of highways for the 
alteration, widening or vacation of any road, or laying 
out any new road, they shall cause a copy of this peti¬ 
tion to be posted up in three of the most public places 
in the town, in the vicinity of the road to be laid out, 
altered, widened or vacated, at least twenty days before 
any action shall be had in reference to such petition. 
The posting of any notice required by this act may be 
proved by the affidavit of the person posting the same, 
or by other legal evidence. 2 

1 § 70, act April 11, 1873. 2 § 71, id. 


* Note.— In case the petition is granted, there must he, besides this memo¬ 
randum, a formal order vacating the road, a copy of which order, together 
with the petition, must he filed in the County Clerk’s office within ten days 
after the date of the decision. 









106 


THE HIGHWAY SYSTEM. 


[Sec. III. 


Nonce — 1 etition for Vacating Road. 

Notice is hereby given, That the following is a true copy of a 
petition which will be presented to the Commissioners of High¬ 
ways, after the expiration of 20 days. 

Dated this day of 18 . 

State of Illinois ,) Town of 

-County, f ss ’ 

To the Commissioners of Highways of the town of in the County of 

and State of Illinois: 

The undersigned, freeholders, residing in said town, within 
three miles of the road known as 

do hereby petition you to vacate 
said road 

And your petitioners pray that you will proceed and vacate said 
road accordingly. 

Dated at this day of 18 

Names : A B, etc. 

Petition for Altering of Road. 

State of Illinois ,) Town of 

-County, j ss ' 

To the Commissioners of Highways of the town of in the County oj 

and State of Illinois: 

The undersigned, freeholders, residing in said town, within 
three miles of the road known as 

do hereby petition you to alter 
said road as follows : Commencing at 

in said town, and running the line of said road as follows, viz.: 

And your petitioners pray that you will proceed and alter said 
road accordingly. 

Dated at this day of 18 . 

Names : A B, etc. 

[Indorsement.] 

Petition for Altering Road. 

To alter the road from 
Filed in the office of the Town Clerk this 

’8 . 


day of 

-, Town Clerk, 





Sec. III.] UNDER TOWNSHIP ORGANIZATION. 


107 


State of Illinois ,) 

-County, f ss ’ 

being duly sworn, doth depose 
and say that he did on the day of 

A. D. 18 , post up three copies of the within petition, as follows, 

viz.: 

One copy at 

one copy at and 

one copy at 

in the town of in said County, they being three 

of the most public places in said town. 

\ 

Subscribed and sworn to before me, this day of 

A. D. 18 . -* 


The undersigned, Commissioners of Highways of the town of 
met at on the day of 

18 , ten days’ notice of such meeting having 

been given, as required by law, to hear reasons for and against 
altering the road described in the within petition, as therein 
prayed ; and having personally examined the route of said road, 
and heard such reasons as were offered for and against altering 
the same, we decided that the prayer of said petition should be 
which decision was publicly announced. 

Given under our hands, this dav of 

18 . —-, 


Commissioners of Highways * 

Copy Petition for Altering of Road. 

Notice is hereby given, That the following is a true copy of a 
petition which will be presented to the Commissioners of High¬ 
ways, after the expiration of 20 days. 

Dated this day of 18 . 

State of Illinois ,) , , Town of 

-County. ) 

To the Commissioners of Highways of the town of in the County of 

and State of Illinois: 

The undersigned, freeholders, residing within three miles of 


* Note.— In case the petition is granted, there must he, besides this memo¬ 
randum, after proper proceedings, a formal order altering the road, which 
order, together with the report of the Surveyor, the petitions, releases or 
agreements, in respect to damages, must he filed in the County Clerk’s oflice 
within t<m days after the date of such order. 

















108 


THE HIGHWAY SYSTEM. 


[SEC. III. 


the road known as 

do hereby petition you to alter 
said road as follows : Commencing at 

in said town of and running the line of said road 

as follows, viz.: 

And your petitioners pray that you will proceed and alter said 
road accordingly. 

Dated at this day of 18 . 

Names: A B, etc. m 

72. Whenever the commissioners of highways shall 
receive any such petition, with the proof of the post¬ 
ing of copies, as in the next preceding section specified, 
they shall fix upon a time when and where they will 
meet to examine the route of such road, and to hear 
reasons for or against the altering, widening, vacating 
or laying out the same — which meeting shall be 
within twenty days after the expiration of the twenty 
days required for the posting of the copies of the peti¬ 
tion in the next preceding (71) section, and they shall 
give at least ten days’ notice of the time and place of 
such meeting, by posting up notices in three of the 
most public places in the township, in the vicinity of 
the road to be widened, altered or vacated. 1 


i § 72, act April 11, 1873. 

The statute requiring the commissioners of highways to meet within ten 
days after the twenty days prescribed for posting a petition for the alteration 
or discontinuance of any road, or laying out any new road, to hear reasons 
for and against the object sought by the petition, is peremptory. 

Commissioners v. Harper, 38 Ill. 104. 

Notice must be given, as required by statute, of such meeting of the 
commissioners, and the want of it will vitiate their proceedings. It is essen¬ 
tial to their jurisdiction. What is said to the contrary in Wells v. Hicks, 27 
Ill. 345, is to be regarded as obiter dictum merely.— Id. 

Two op the three commissioners can make a contract for building a 
bridge, which will be binding on the whole body. 

Comm’rs of Highways v. Baumgarten, 41 Ill. 254. 

Highway commissioners are a quasi corporation.— Id. 

The commissioners may alter, modify or rescind any order their prede- 


Sec. III.] UNDER TOWNSHIP ORGANIZATION. 


109 


Highway Notice. 


A petition having been presented to the Commissioners of High¬ 
ways of the town of * in the County of 

road upon the following described route, 

to wit: 


The Commissioners do hereby give notice, That they have fixed 
upon the day of 18 , at the hour 

of o’clock, in the noon, at the 

in said town, as the time and place they 
will meet to hear any reasons that may be offered for or against 
the of said road, when and where all persons 

interested can be heard. 

Dated at this day of 18 . 


Commissioners of Highways. 

cessors have made, provided their action does not affect rights of third persons 
acquired under such order. 

The People v. Vermilion Co., 47 Ill. 250; Beckwith v. English, 51 Ill. 147. 

They cannot locate a bridge where no highway exists. 

The People v. Vermilion Co., 47 Ill. 256. 

Necessity op adjourning from day to day.— The omission of commis¬ 
sioners of highways to adjourn from day to day, pending proceedings before 
them upon a petition for a public road, is not an irregularity which is juris¬ 
dictional in its character, and an appeal to the supervisors upon the merits 
would operate as a waiver thereof. 

Allison v. Comm’rs of Highways, 54 Ill. 170. 

Proceedings of commissioners. —A petition for the laying out of a high¬ 
way must be posted up in three of the most public places in the town, twenty 
days before any action can be had upon it; and the commissioners, upon 
determining to lay out, alter, or discontinue a highway, must give eight days’ 
additional notice of time and place, when and where they will meet to hear 
reasons for or against their proposed action. 

Corley v. Kennedy, 28 Ill. 143. 

As to when an appeal and when certiorari should be resorted to, for 
relief from an order of the commissioners of highways. 

Comm’rs v. Harper, 38 Ill. 104. 

Notice.— Where the record of the proceedings before commissioners of 
highways shows that notice of the laying out of the road was properly given, 
upon an appeal regularly taken to the supervisors, they acquire the jurisdic¬ 
tion to determine the validity of the notices, and their decision upon that 
point cannot be collaterally attacked. 

Wells v. Hicks, 27 Ill. 343. 

The statute, which requires the commissioners of highways to act within 
ten days after the expiration of the twenty days’ notice, does not compel 
them to decide the matter within the thirty days; it is sufficient that they 
commence their work within that time.— Id. 








no 


THE HIGHWAY SYSTEM. 


[Sec. III. 


Surveyor's Report. 

To the Commissioners of High ways of the town of m the County of 

and State of Illinois: 

The undersigned, having been employed by you to make a sur¬ 
vey of a road beginning at 

would report that the following is a correct survey thereof as 
made by me under your directions, to wit: 

and that below is a correct plat of said road, according to said 
survey. 

Dated at this day of 18 . 

County Surveyor of County. 


Township No. Range No. of Principal Meridian. 


6 

5 

4 

3 

2 

1 

7 

8 

9 

10 

11 

12 

18 

17 

10 

15 

14 

13 

19 

20 

21 

22 

23 

24 

30 

29 

28 

27 

2G 

25 

31 

32 

33 

34 

35 

36 


[Indorsement.] 

Surveyor's Report. 

Survey of road beginning at 

Filed this day of A. D. 18 , in the office of 

the Town Clerk of the town of 

-, Town Clerk. 


















































SEC. III.] UNDER TOWNSHIP ORGANIZATION. Ill 

73. The commissioners may, by public announce¬ 
ment, and by the posting of a notice at the time and 
place named for the first meeting, adjourn the meeting 
from time to time, but not for a longer period than 
twenty days in all; and shall, at the first, or such 
adjourned meeting, within said twenty days, decide 
and publicly announce whether they will grant or 
refuse the prayer of the petition, and shall indorse 
upon, or annex to the petition, a brief memorandum 
of such decision, to be signed by the commissioners. 
Such decision shall be subject to revocation, in case 
the prayer of the petition is granted, in the manner 
hereinafter provided. In case the commissioners refuse 
to grant the prayer of the petition, they shall, within 
ten days thereafter, file the same, so indorsed, or with 
such decision annexed thereto, in the office of the 
town clerk. 1 

74. If the petition is simply for the vacation of a 
road, and the commissioners of highways, or a majority 
of them, shall, at such meeting, decide that the prayer 
of the petitioners should be granted, they shall order 
such road to be vacated — a copy of which order, 
together with the petition, shall be by them filed with 
the town clerk; such order to be so filed within ten 
days after the date of such decision. 2 

75. If such petition is for the establishment of a 
new road, or the alteration or widening of an existing 
road, and the commissioners of highways, or a majority 
of them, shall be of the opinion that the prayer of 
the petitioners should be granted, they shall cause a 
survey and a plat of such road to be made by a com¬ 
petent surveyor, who shall report such survey 3 and plat 

i § 73, act April 11, 1873. 2 § 74, id. 

3 In quite a recent case (55 Ill. 117) the court says: “ On the trial in. the 
court below, the defendants offered in evidence under their plea, the order of 
the supervisors that attempted to lay out the highway, which was objected to 


112 


THE HIGHWAY SYSTEM. 


[Sec. III. 


to said commissioners, giving the courses and distances, 
and specifying the land over which said road is to 
pass — in which they may make such changes between 
the termini of the road described in the petition, as 
the convenience and interest of the public, in their 
judgment, may require. 1 

by the counsel for the plaintiff, on the ground, as stated in the bill of excep¬ 
tions, ‘that the surveyor’s plat of the survey attached to and incorporated in 
said record does not appear to have been signed by the surveyor referred to in 
said report.’ The court sustained the objection, and refused to allow the 
order of the supervisors to be read to the jury. If, on an appeal, the super 
visors undertake to lay out and establish a public highway, they must proceed 
in all things the same as commissioners of highways. They certainly have 
no higher or greater authority than the commissioners from whom they obtain 
jurisdiction. The statute distinctly defines the duties of the commissioners 
of highways in such cases. (Gross’ Comp. 771, § 58.) By the statute, they are 
directed ‘ to cause a survey to be made by a competent surveyor, who shall 
make a report to them of such survey, accompanied with a plat particularly 
describing the route by metes and bounds, courses and distances, and also the 
land over which the road passes. They shall incorporate such survey, accom¬ 
panied with a plat, iu an order to be signed by them, which order, together 
with the petition and report of the surveyor, shall be deposited with the town 
clerk.’ It would seem to be only necessary, under the provisions of this 
statute, for the commissioners of highways, or the supervisors when, on an 
appeal, they undertake to lay out the road, to incorporate so much of the 
survey as indicates clearly the courses and distances of the route of the road, 
and the land over which it passes. They are certainly not required to incor¬ 
porate the plat into their order. It is provided that the plat is to accompany 
the order, and is to be filed in the town clerk’s office. The same provision 
applies to the surveyor’s report. The statute does not require the commis¬ 
sioners, or the supervisors when they act, to incorporate the whole of the 
surveyor’s report into their order. A substantial compliance with the pro¬ 
visions of the statute is all that is ever required. It is not necessary for the 
commissioners or supervisors to state, in their order laying out a road, that 
the surveyor sigued his report, which the statute requires to be made to them. 
There is nothing in the statute on that subject. If the statute does not direct 
them so to state in their order, then it is not necessary. We have been referred 
to the case of Town v. the Town of Blackberry, 29 Ill. 137, as holding a 
different rule from the one here stated. We have examined that case and find 
it in entire harmony with the views here expressed. The order of the super¬ 
visors, which attempted to establish the road, should have been permitted to 
go to the jury for their consideration. The order adopted the survey and plat 
made by the surveyor, and that was sufficient, so far as the order itself is 
concerned. (Wells v. Hicks, 27 111.343.) The evidence was pertinent to the 
issue made by the pleadings, and no reason is perceived why the jury ought 
not to have been permitted to consider it,with the other evidence in the case.” 
(Tow'er v. Pitstick, 55 Ill. 118.) 

1 § 75, act April 11, 1873. 


SEC. III.] UNDER TOWNSHIP ORGANIZATION. 


113 


Petition for New Road. 

State of Illinois,) Town of 

-County. ) 

To the Commissioners of Highways of the town of in the County of 

and State of Illinois: 

The undersigned, freeholders residing within three miles of 
the route hereinafter mentioned and described for a road, do 
hereby petition you to lay out a new road, of the width of four 
rods, as follows : Commencing at the 

in said town, and running from thence in a 
direction on the most eligible route to 

The names of the owners of lands over which the same is to 
pass * are: 

And your petitioners pray that you will proceed to lay out said 
road, and cause the same to be opened according to law. 

Dated at this day of A. D. 18 - . 

Names : A B. etc. 

[Indorsement.] 

Petition for New Road. 

To lay ont road from 

Filed in the office of the T6wn Clerk the day of 18 . 

-, Town Clerk. 

State of Illinois, [ 

-County, j ss> 

being duly sworn, doth depose 
and say, tha*t he did, on the day of 

A. D. 18 , post up three copies of the within petition, as follows, 
viz.: 

One copy at 

one copy at and 

one copy at 

in the town of in said County, they being three 

of the most public places in said town. 

Subscribed and sworn to before me, this day of 

A. D. 18 . - 


* Note.— When the owners of any of the lands over which the road is to 
pass are unknown, this fact should be so stated in the petition. 

r* 

* . 
















114 


THE HIGHWAY SYSTEM. 


[SEC. III. 


The undersigned, Commissioners of Highways of the town of 
met at on the day of 

18 , ten days’ notice of the time and place of 

said meeting having been given as required by law, to hear rea¬ 
sons for and against the laying out of the road described in the 
within petition, as therein prayed; and having personally exam¬ 
ined the route of said road, and heard such reasons as were offered 
for and against laying out the same, w T e decided that the prayer 
of said petition should be which decision was 

publicly announced.* -, 


Commissioners of Highways. 

Petition for Laying Out Neva Road. 

Notice is hereby given, That the following is a true copy of a 
petition which will be presented to the Commissioners of High¬ 
ways, after the expiration of 20 days. 

Dated this day of 18 . 

State of Illinois, [ Town of 

-County. ) 

To the Commissioners of Highways in the town of in the County of 

and State of Illinois : 

The undersigned, freeholders, residing within three miles of 
the route hereinafter mentioned and described for a road, do 
hereby petition you to lay out a new road, of the width of four 
rods, as follows : Commencing at the 

in said town, and running from thence in a 
direction on the most eligible route to 

The names of the owners of lands over which the same is to 
pass are: 

And your petitioners pray that you will proceed to lay out said 
road, and cause the same to be opened according to law. 

Dated at this day of A. D. 18 . 

Names : A B, etc. 


* Note.—I n case the petition is granted, there must he, besides this memo¬ 
randum, after proper proceedings, a formal order laying out the road, which 
order, together with the report of the surveyor, the petition and the releases 
or agreements in respect to damages, must be filed in the town clerk’s office, 
within ten days from the date of such order. 












SEC. III.] UNDER TOWNSHIP ORGANIZATION. 


115 


76. They shall also, before they order any road to 
be established, altered, widened or vacated, ascertain, 
as hereinafter provided, the aggregate amount of dam- 

BoncL in Case of Appeal f rom A ward of Road Damages. 

Know all men by these presents. That we, 
of in the County of and State of 

Illinois, are held and firmly bound unto 

in the penal sum of dollars, for the payment of 

which, well and truly to be made, we bind ourselves, our heirs, 
executors and administrators, jointly, severally and firmly by 
these presents. 

Signed with our hands and sealed with our seals, this 
day of 18 . 

The condition of the above obligation is such, That whereas, 
the above bounden ha appealed from the ver¬ 

dict of a jury duly impaneled to assess the damages in the matter 
of the laying out of a public highway from 

which verdict was rendered on the day of 

18 , before ’ Esq., a Justice of 

the Peace of said County of to the 

Court of said County. 

Now, therefore, if the above bounden 
shall promptly pay, or cause to be paid, all costs arising from said 
appeal, in case the said verdict of the jury in the premises shall 
be in all things sustained, then the above obligation to be void; 

otherwise to remain in full force and virtue. 

-[seal.] 

-[seal.] 

-[seal.] 

Signed, sealed and delivered in presence of 


The above bond of of 

Illinois, approved by me this day of 

A. D. 18 . ' -, 

Justice of the Peace 


Bond of 


[Indorsement.] 
Road Appeal Bond. 


Filed this 
the 


Securities. 

day of 


A. D. 18 , in the office of 














116 


THE HIGHWAY SYSTEM. 


[Sec. III. 


ages which the owner or owners of the land over 
which such road is to pass, shall be entitled to, by 
reason of the location, alteration or vacation of such 
road: Provided , however , that in case an appeal is 
taken from the assessment of damages before the 
justice of the peace, the commissioners may, in their 
discretion, make an order laying out, widening, alter¬ 
ing or vacating such road, either before or after such 
appeal is determined, in the manner hereinafter pro¬ 
vided. 1 

77. The damages sustained by the owner or owners 
of the land, by reason of the establishment, alteration, 
widening or vacation of any road, may be agreed upon 
by the owners of such lands, if competent to contract, 
and the commissioners of highways, or they may be 
released by such owners — in which case the agree¬ 
ment or release shall be in writing, and shall be hied 
and recorded with the copy of the order establishing 
or altering such road, in the town clerk’s office, and 
shall be a perpetual bar against such owners, their 
grantees and assigns, for all further claims for such 
damages. 2 

Release of Damages. 

Whereas, a road was on the day of 

A. D. 18 , by and 

Commissioners of Highways of the town of 

in the County of and State of Illinois, on the 

application of the requisite number of legal voters, residing with¬ 
in three miles of said road, as follows : Commencing 

which road passes through certain lands owned by me, being 
known and described as follows: 

Now, therefore, know all men by these presents, That I, 

for value received, do hereby release all 


1 § 76, act April 11, 1873. 2 § 77, id 


SEC. HI.] UNDER TOWNSHIP ORGANIZATION. 


117 


claims to damages sustained by me, by reason of laying out and 
opening said road through my lands, above described. 

In witness whereof, I have hereunto set my hand and seal, this 
day of A. D. 18 . 

-[seal.] 

Executed and delivered in presence of 


[Indorsement.] 

Release of Dam ages. 

Of 

Dated 18 . 

Filed in the Town Clerk’s office of the town of the 

day of 18 . 

-, Town Clerk. 

Agreement for Damages in Laying Out or Altering Road. 

Whereas, a road was laid out on the day of 

A. D. 18 , by and Commis¬ 
sioners of Highways of the town of in the County 

of and State of Illinois, on the application of the 

requisite number of freeholders, residing within three miles of 
said road, as follows : Commencing 

which road passes through the land of 
being known and described as follows, viz.: 

Now, therefore, it is hereby agreed between the said Commis¬ 
sioners and the. said that the damages sustained 

by the said by reason of the laying out and open¬ 

ing said road upon his land, hereinbefore described, be liquidated 
and agreed upon at ' dollars. 

In witness whereof, the said Commissioners and the said 

' have hereunto subscribed their names, this 
day of A. D. 18 . 


Commissioners of Highways. 

[Indorsement.] 

Agreement for Damages in Laying Oat or Altering Road. 

Of damages agreed, $ 

Dated 18 . 

Filed this day ol 18 , in the Town Clerk’s 

office of the town of 

-, Town Clerk. 
















118 


THE HIGHWAY SYSTEM. 


[Sec. III. 


78. In case such damages are not released or agreed 
upon, as in the preceding section specified, the com¬ 
missioners of highways shall, within twenty (20) days 
from the date of the meeting at which it was decided 
to grant the prayer of the petition, make a certificate 
that they are about to establish, widen, vacate or alter 
a public road, describing such road, vacation, widen¬ 
ing or alteration, and the land over or on which 
sucli road is to be established, altered, widened or 
vacated, and naming the owners of such land, if 
known, and if not known, stating the fact, and asking 
for a jury to assess the damages of such owners, and 
shall present such certificate to some justice of the 
peace of the county, who shall summon a jury of six 
persons in the manner hereinafter provided, having 
the qualifications of jurors, to appear before such jus¬ 
tice of the peace at a time to be fixed by him, within 
ten days from the time such certificate was presented 
to him, to assess such damages. 1 

79. The commissioners of highways shall also notify 
each and every owner of land — if known, and a resi¬ 
dent of the county — whose damages are to be assessed, 
that they will apply to some justice of the peace of 
the county (giving the time when and place where) to 
have a jury impaneled to assess such damages. 2 

1 § 78, act April 11,1873. 

2 § 79, id. 

Waiver. — One entitled to the notice of the meeting of the jury waives 
the omission of it by appearing before the jury and contesting. 

Mohawk etc. v. Artcher, 6 Paige 83. 

Persons who agree upon the jurors cannot object to their competency. 

People v. Taylor, 34 Barb. 481. 


Sec. III.] UNDER TOWNSHIP organization. 


110 


Notice to Land Owners of Application for Jury to Assess Damages. 

State of Illinois, \ Office of the Commissioners of Hiedi- 

-County. \ ss - ways of 

To , Esq., 


This is to notify you that on the clay of 

18 , we shall apply to 

Esq., a Justice of the Peace of said County, at 
to have a jury impaneled to assess the damages to which you may 
be entitled by reason of the of a public road over 

certain land by you owned, as by us determined. 

Given under our hands this day of 

18 . _ 


Commissioners of Highways 

80. Upon the presentation of such certificate by the 
commissioners of highways, the justice of the peace 
shall forthwith name eighteen persons having the 
qualifications of jurors, two-thirds of whom shall not 
be residents of the town in which the proposed road 
is located. The commissioners of highways shall have 
the right to strike from such list of names the names 
of six of such persons named, and the owners of the 
lands whose damages are to be assessed, or their 
authorized agent or agents, shall also have the right 
to strike from such list the names of six other persons. 
The striking from the list of said names shall be done 
alternately, one at a time, by the commissioners of 
highways and the. claimants, the commissioners begin¬ 
ning first; and the six persons whose names still 
remain on said list, shall comprise the jury to assess 
such damages: Provided , that if the commissioners 
of highways and the owners of lands shall fail to 
strike from such list the names of twelve persons, the 
justice of the peace shall select from the names still 
remaining, the six persons to constitute said jury . 1 


1 § 80, act April 11, 1873. 









120 


THE HIGHWAY SYSTEM. 


[Sec. III. 


81. At the trial of the case, either party shall have 
the right of challenge for cause, and for that only; 
and any deficiency in the number of jurors, from 
whatever cause, shall he supplied by summoning other 
persons residing in the township, or in an adjoining 
township, in the same manner as in a civil case. Such 
justice of the peace shall notify the owners of such 
land mentioned in such certificate to appear at the 
same time before such justice to prove their damages. 1 

82. In case it shall appear either from the certificate 
of the commissioners, the affidavit of any person, or 
the return of any officer to whom the notice may be 
delivered for service, that there is an unknown owner 
or owners who cannot he found and served within the 
county, such justice shall also cause notice to be posted 
in three of the most public places in the vicinity of 
such proposed road or alteration, at least six days 
before the time fixed for the appearance of such jury, 
stating when such jury is to be impaneled by him, 
and describing the road to be established, altered, 
widened or vacated as petitioned for, and the lands for 
which damages are to be assessed. 2 

83. The notice to such owners of lands may be 
served by any constable or one of the petitioners, or 
other person of lawful age, at least five days before 
the time of appearance. If any of such owners is an 
infant, such summons ‘shall be served by delivering 
a copy to the infant or its guardian, if any; if no 
guardian, the person with whom he or she resides. If 
any owner is a lunatic, or habitual drunkard having a 
conservator, or insane, by delivering a copy to his 
conservator, if any; if any such owner is a married 
woman, by delivering a copy to her. 3 


1 § 81, act April 11, 1873. 2 § 82, id. 3 § 83, id. 


SEC. III.] UNDER TOWNSHIP ORGANIZATION. 


121 


Justice’s Notice to Land Owner to prove Damages by Laying out 

of Road, etc. 

State of Illinois ,) 

-County, y ss ' 

Whereas, the Commissioners of Highways of 
have presented to me a certificate stating that they are about to 

a public road over certain lands therein 
described, and asking for a jury to assess the damages to which 
the owners of said lands may be entitled by reason of the 

of said road over the same, in which certificate 
you are named as the owner of certain of said lands, to wit: 

You are therefore hereby commanded to appear before me at 
on the day of 18 , 

to prove the damages by you sustained in the premises. 

Given under my hand this day of 

18 . ---, 

Justice of the Peace. 

[Indorsement.] 

Summons to 

land owner, to appear and prove damages in the matter of the laying out of a 
road. 

Issued 18 . Returnable 18 . 

Served the within summons by - 

,84. The jury shall appear before and be sworn or 
affirmed by such justice, faithfully and impartially to 
assess the damage of each of the owners specified in 
such certificate, or those of them whose claims are 
then to be adjusted, according to law, to the best of 
their judgment and understanding; and all parties in 
interest shall be entitled to subpoenas and other writs 
and papers, and the trial shall be conducted as in other 
civil cases. 1 

85. The jury shall hear such lawful evidence touch¬ 
ing the question of such damages as may be presented 
to them ; and shall also, on request of a majority of 
the road commissioners or owners of lands whose dam¬ 
ages are to be determined, in a body, visit and examine 
the proposed location, alteration, widening or vacation 
of such road, and the lands to be taken and affected 

i § 84, act April 11, 1873. 







m 


THE HIGHWAY SYSTEM. 


[Sec. III. 


thereby, and make a written verdict specifying the 
amount of damages, if any, which each such owner shall 
recover, and return the same to such justice, to be by 
him entered on his docket in the nature of a judgment, 
to be paid by such commissioners, together with the 
costs of such suit, in case they shall finally determine 
to establish, alter, widen or vacate such road; and the 
money therefor shall be paid by the town, out of the 
funds in the hands of the treasurer of the commis¬ 
sioners of highways, raised for road and bridge pur¬ 
poses : Provided ', that in estimating damages the jury 
may consider the benefits conferred, or may disregard 
such benefits; but no benefits enjoyed in common by 
the owners of surrounding property shall be considered 
in estimating damages. 1 

Verdict of Jury — Assessment of Road Damages. 

State of Illinois ,} Before. J. P. 

-County. ) ss ' 

Verdict of jury in the matter of the assessment of damages con¬ 
sequent upon the of a road over lands described 

and owned as follows, viz.: 


Description of Land. 


Owned by 


We, the jury summoned to assess damages in the above cause, 
having taken the oath required by law, and having heard the 
evidence presented, and having in a body visited and examined 
the location of the said road, the lands to be taken and affected 


by the proposed 


of the same, do assess the dam 


ages at what we deem just and right to each of said claimants 
(having first estimated and deducted the advantages and benefits), 
as follows, viz.: 


To the said 
to the said 
to the said 
to the said 


the sum of 
the sum of 
the sum of 
the sum of 


dollars: 
dollars * 
dollars 
dollars: 


day of 


The above verdict given under our hands, this 

ty of 18 . (Signatures of Six Jurymen.) 


1 § 85, act April 11, 1873. 











SEC. III.] UNDER TOWNSHIP ORGANIZATION. 


123 


86. Provided , that when there are several such 
owners the jury may assess the damages or one or more 
or all of them at the same time, or they may assess 
such damages at different times, or there may be dif¬ 
ferent juries and trials at different times for different 
owners if any owner shall demand a separate trial; 
and any such assessment of damages may be continued 
from time to time for good cause, with the like effect 
as continuances in other cases before justices of the 
peace. 1 

87. Within thirty days after the total amount of 
damages shall have been ascertained, either by release 
or agreement of the parties, or by assessment before a 
justice of the peace and a jury, in the manner herein¬ 
before provided, the commissioners shall hold a meet¬ 
ing to finally determine upon the laying out, altering, 
widening or vacation of such road, of which meeting 
said commissioners shall give public notice, by causing 
not less than three notices thereof to be posted in pub¬ 
lic places within the town, at least five days prior 
thereto. 2 

Commissioners’ Notice for Final Meeting. 

Highway Notice.— Notice is hereby given, That the under¬ 
signed, Commissioners of Highways of 

in the County of and State of Illinois, will meet 

on the day of 18 , at 

o’clock M., at 

to finally determine upon the of a road described 

as follows, to wit: Beginning 

the petition for which road has been heretofore considered and 
the prayer thereof granted, the route surveyed and the damages 
consequent upon the of the same having now 

been ascertained. 


f 

Commissioners of Highways. 
i § 86, act April 11, 1873. 2 § 87, id. 








124 


The highway system. 


[Sec. III. 


88. In cases where the damages are not wholly 
released or agreed upon, and the commissioners shall 
be of the opinion that the damages assessed by the jury 
are manifestly too high, and that the payment of the 
same would be an unreasonable burden upon the tax¬ 
payers of the town, the commissioners may revoke all 
proceedings had upon the petition by a written order 
to that effect. And such revocation shall have the 
effect to annul all such proceedings and assessments, 
releases and agreements, in respect to damages growing 
out of the proceedings upon the petition. 1 

89. In case the commissioners shall not revoke 
such prior proceedings they shall make an order, to be 
signed by them, declaring such road so altered, 
widened or laid out a public highway, and which order 
shall contain or have annexed thereto a definite descrip¬ 
tion of the line of such road, together with a plat 
thereof. The commissioners shall, within ten davs 
from the date of such order, cause the same, together 
with the report of the surveyor, the petition and 
releases or agreements in respect to damages, to be 
deposited and filed in the office of the town clerk, who 
shall note upon such order the date of such filing. 
It shall be the duty of such clerk, after the time for 
appeal to supervisors has expired, and in the case of 
such appeal, after the same shall have been deter¬ 
mined, in case the prayer of the petition is granted, to 
record such order, together with the plat of the sur- 
veyor, in a proper book to be kept for that purpose. 2 

Order of Commissioners Vacating Hoad. 

State of Illinois, j> Town of 

-County. \ ss ’ 

Whereas, on the day of 18 

we, the Commissioners of Highways of said town, received a peti¬ 
tion in writing, of 


1 § 88, art April 11, 1878. a § g9 jtf 



Sec. III.] UNDER TOWNSHIP ORGANIZATION. 


125 


praying for tlie vacating of a road therein and hereinafter de¬ 
scribed, said petitioners being freeholders residing in said town 
within three miles of said road; and it appearing from legal evi¬ 
dence that a copy of said petition had been posted up in three of 
the most public places in said town, in the vicinity of said road, not 
less than 20 days before the day of 18 , 

we did, upon said day of 18 ,fix 

upon the day of 18 , as the 

time when and as the place where we, the 

said Commissioners of Highways, would meet to examine the said 
road, and hear reasons for or against the vacating of the same, and 
gave ten days’ notice of the time and place of such meeting by 
posting up notices thereof in three of the most public places in 
said town, in the vicinity of the said road; and having met at the 
time and place appointed 

we personally examined the route of said road, to wit: 

and having heard such reasons as were offered for and against the 
vacating of said road, and being of the opinion that such vacating 
was necessary and proper, and that the public interest would be 
promoted thereby, we decided that the prayer of said petitioners 
should be granted. 

It is, therefore, hereby ordered and determined, and we do 
hereby order and determine, that said road be vacated and discon¬ 
tinued. 

In witness whereof, we, the said Commissioners, have hereunto 
set our hands, this day of A. D. 18 . 


Commissioners of Highways. 


[Indorsement.] 

Order of Commissioners Vacating Road. 
Filed in the office of the Town Clerk this day of 

Reeorded the day of 18 , in 

page . - 


18 

Town Clerk. 
-, Clerk. 


Order Laying Out , Altering or Widening Highway (where dam • 

ages are assessed.) 

State of Illinois,) Town of 

-County. S' SS ’ 

Whereas, on the day of 18 , 

we. the Commissioners of Highways of said town, received a peti- 













12G 


THE HIGHWAY SYSTEM. 


[Sec. III. 


tion in writing, of 

praying for the of a road as therein 

and hereinafter described, said petitioners being freeholders resid¬ 
ing in said town within three miles of the said ; and 

it appearing from legal evidence that a copy of said petition had 
been posted up in three of the most public places in said town, in 
the vicinity of the road to be not less than 

20 days before the day of 18 , 

we did, upon said day of 18 , fix 

upon the day of 18 , as the 

time when and as the place where we, the 

said Commissioners of Highways, would meet to examine the 
route of said road, and to hear reasons for and against the 

of the same, and gave ten days’ notice of the 
time and place of such meeting by posting up notices thereof in 
three of the most public places in said town, in the vicinity of 
said ; and having met at the time and place 

appointed* 

and having examined the 
in said petition described, and heard such rea¬ 
sons as were offered for and against the of said 

road, we were of the opinion that the of 

said road was necessary and proper and that the public interest 
would be promoted thereby. We, therefore, caused a survey and 
plat of said road to be made on the day of 

18 , by a competent Sur¬ 

veyor, which plat and survey were to us duly reported, and are 
hereunto appended and made a part of this order; and having 
ascertained the aggregate amount of damages to which the 
owner of the land over which said road was to pass 

entitled, and said damages having been definitely fixed byf 

\ 

we appointed the day of 18 

(being within thirty days after the total amount of damages was 
ascertained), at as the time and place to meet and 

finally determine upon the of said road, of 

which meeting we gave public notice by causing three notices to 
be posted in public places in said town not less than five days 


*If the meeting is adjourned from time to time, by public announcement 
or notices posted, note such adjournment in the space left at* 
t State in this space the method or methods by which damages were fixed, 
as by agreement, release and assessment by jury. If appeal was taken from 
the decision of jury, and said appeal was decided before the making of this 
order, state also that fact. 



SEC. III.] UNDER TOWNSHIP ORGANIZATION. 


l'Z7 


prior thereto; and having met at the time and place appointed, 
and the aggregate amount of damages on account of the 
of said road, to wit: the sum of 

dollars and cents, appearing to be not more than rea¬ 

sonable compensation, and to have been fairly and legally 
assessed, and the payment thereof not an unreasonable burden 
upon the taxpayers of the town, and the damages awarded to 

non-residents of the County, having been duly deposited with 

as by law required ; and having made such changes in the route 
of said road between the termini thereof, upon the survey and 
plat as reported by the Surveyor, as in our judgment the conve¬ 
nience and interest of the public required, as will fully appear 
from the description and plat hereinafter contained, it was finally 
determined that the said road be 

It is, therefore, hereby ordered and determined that the said 
road be and is hereby as follows, to wit: 

Beginning 

As shown by the plat hereunto annexed, and as so 
is declared a public highway of 

feet wide, the line of said survey being the centre of said road. 

In witness whereof, we, the said Commissioners of Highways, 
have hereunto set our hands, this day of 

A. D. 18 . -, 


Commissioners of Highways. 

PLAT REFERRED TO IN THE FOREGOING ORDER. 

Township No. Range No. of Principal Meridian. 

County of 

{See page 110, supra.) 

[Indorsement.] 

Order of Commissioners 
road from 

Filed in the office of the Town Clerk, this 
18 . 

Recorded in road book page 


to 


day of 

, Town Clerk. 
18 . 

-. Town Clerk. 











128 


THE HIGHWAY SYSTEM. 


[Sec. III. 


Order Laying Out, Altering or Widening Highway (where dam¬ 
ages are released or agreed upon). 

State of Illinois ,} ^ Town of 

-County, f SS - 

Whereas, on the day of 18 , 

we, the Commissioners of Highways of said town, received a peti¬ 
tion in writing, of 

praying for the of a road as therein 

and hereinafter described, said petitioners being freeholders resid¬ 
ing in said town within three miles of the said ; and 

it appearing from legal evidence that a copy of said petition had 
been posted up in three of the most public places in said town, in 
the vicinity of the road to be not less than 

20 days before the day of 18 , 

we did, upon said day of 18 , fix 

upon the day of 18 , as the 

time when and as the place where we, the 

said Commissioners of Highways, would meet to examine the 
route of said road, and to hear reasons for and against the 

of the same, and gave ten days’ notice of the 
time and place of such meeting by posting up notices thereof in 

three of the most public places in said town, in the vicinity of 

said ; and having met at the time and place 

appointed* 

and having examined the 
in said petition described, and heard such rea¬ 
sons as were offered for and against the of said 

road, we were of the opinion that the of 

said road was necessary and proper, and that the public interest 
would be promoted thereby. We, therefore, caused a survey and 
plat of said road to be made on the day of 

18 , by a competent Sur¬ 

veyor, which plat and survey were to us duly reported, and are 
hereunto appended and made a part of this order ; and having 
ascertained the aggregate amount of damages to which the 
owner of the land over which said road was to pass 
entitled, and said damages having been definitely fixed byf 


and having made such changes in the route of said road between 
the termini thereof, upon the survey and plat as reported by the 


* If meeting is adjourned from time to time, by public announcement or 
notices posted, note such adjournment in space left at * 

+ State in this space the facts as to release of or agreement for damages. 





Sec. 111.] UNDER TOWNSHIP ORGANIZATION. 


120 


Surveyor, as in our judgment the convenience and interest of the 
public required, as will fully appear from the description and 
plat hereinafter contained, it was finally determined that the said . 
road be 

It is, therefore, hereby ordered and determined that the said 
road be and is hereby as follows, to wit: 

Beginning 

As shown by the plat hereunto annexed, and as so 
is declared a public highway of 

feet wide, the line of said survey being the centre of said road. 

In witness whereof, we, the said Commissioners of Highways, 

have hereunto set our hands, this day of 

A. IX 18 . -, 


Commissioners of Highways. 

rLAT RE FEU REl) TO IN THE FOREGOING ORDER. 

Township No. Range No. of Principal Meridian.' 

Countv of 

•/ 

{Seepage 110, supra.) 

[Indorsement.] 

Order of Commissioners 
road from to 

Filed in the office of the Town Clerk, this day of 

18 . -, Town Clerk. 

Recorded in road book page 18 . 

-, Town Clerk. 

90. In cases where the damages claimed by the land 
owners for the right of way is released, or is agreed 
upon between the land owners and the commissioners, 
the commissioners may, at their first meeting, or at an 
adjourned meeting, examine the route of the road, and 
cause a survey thereof to be made, and make their 
order establishing, altering, widening or vacating the 
road, according to the prayer of the petition, and 
return the same within the time and in the manner 
specified in this act. 1 


1 § 90, act April 11, 1878. 











130 


THE HIGHWAY SYSTEM. 


[Sec. 111. 


91. Any person or persons interested in the estab¬ 
lishment, alteration, widening or vacation of any road 
in this state, are hereby authorized to offer induce¬ 
ments to the commissioners of highways, for the estab¬ 
lishment, alteration, widening or vacation of any such 
road, by entering into contract with said commis¬ 
sioners, conditioned upon such establishment, altera¬ 
tion, widening or vacation, to pay money or any other 
valuable thing to the town, for the benefit of the road 
and bridge funds of the same ; or to perform any labor, 
or to construct any road, bridge or culvert on any road 
which said person or persons desire to have established, 
widened or altered. And such contracts, in writing, 
made with said commissioners, shall be deemed good 
and valid in law, and may be enforced by said commis¬ 
sioners or their successors in office, before any court 
having jurisdiction. 1 

92. The record of the town clerk, or a certified copy 
of such record and papers, relating to the establish¬ 
ment, location, alteration, widening or vacation of any 
road, shall be prima facie evidence in all cases that all 
the necessary antecedent provisions had been complied 
with, and that the action of the commissioners of high¬ 
ways, or other persons and officers in regard thereto, 
were regular in all respects. 2 

93. Roads for private and public use of the width of 
three rods or less, may be laid out from one dwelling 
or plantation of an individual to any public road, or 
from one public road to another, or from one lot of 
land to another, or from a lot of land to the highway, 
on petition to the commissioners of highways, by any 
person directly interested. The commissioners, on 
receiving such petition, shall have power to lay out the 


1 § 91, net April 11, 1873. 2 § 92, id. 


Sec. III.] UNOEIt TOWNSHIP OItGANIZATlON. 


131 


road as asked for therein, to which end they shall pro¬ 
ceed and examine into the merits of the case, and shall 
be governed in their proceedings by the rules and 
regulations prescribed in this act in relation to public 
roads. The jury shall consider the damages that may 
result to parties from said proposed road, * and shall 
assess the damages to each individual owner of lands 
affected thereby. The amount of such damages shall 
be paid by the persons benefited thereby to the extent 
and in proportion that they are benefited, to be deter¬ 
mined and declared by the jury. The remainder of 
the amount of damages over and above that to be paid 
by the parties as aforesaid, shall be paid by the land as 
in other cases. The amount of damages to be paid by 
individuals, shall be paid to the persons entitled there¬ 
to, before the road shall be opened for use. An appeal 
may be taken on the question of the propriety and 
necessity of such road as in other cases. 1 

94. If such private road or cartway shall not be 
opened by the petitioners or their assigns within two 
years from the time of making the order for the loca- 
tion of the same, such order shall be regarded as 
rescinded. 2 

95. When such private road or cartway is proposed 
to pass over inclosed lands, the owners of such lands 
shall have a reasonable time, not exceeding eight 
months, to be designated by the commissioners of 
highways, to harvest crops and remove fences which 
may be on such land before such road or cartway shall 
be opened. 3 

96. The commissioners of highways may, in their 
discretion, pay persons who live on or have private 
roads which are used by the public, for work done on 


1 § 93, act April 11, 1873. 2 § 94, id. 3 § 95, id. 


132 


THE HIGHWAY SYSTEM. 


[Sec. III. 


such roads; but in no case shall they be allowed more 
than the amount of their road tax for the year in which 
the work is done. 1 

97. Public roads may be established, altered, widened 
or vacated on township or county lines, in the same 
manner as other public roads, except that in such case 
a copy of the petition shall be posted up in and pre¬ 
sented to the commissioners of highways of each town 
interested; whereupon it shall be the duty of the com¬ 
missioners of highways of the several towns to meet 
and act as one body, in the same time and manner as 
in other cases, in considering the petition, viewing the 
premises, adjusting damages and making all orders in 
reference to such proposed road, alteration, widening 
or vacation, and a majority of all such commissioners 
must concur in all such orders; and a copy of all final 
orders and plats and papers shall be filed and recorded 
in each of the counties and towns interested. 2 

98. The commissioners of highways shall also, in case 
a new road is established, allot to each of such towns 
the part of such road which such town shall open and 
keep in repair, and the part so allotted shall be consid¬ 
ered as wholly belonging to such town. They shall 
also divide the expenses and damages which may accrue 
from such location, widening or alteration, and if they 
cannot agree, they shall refer the matter to three disin¬ 
terested freeholders, as arbitrators, whose decision shall 
be final. 3 

99. Any person or persons interested in the decision 
of the commissioners of highways, in determining to or 
in refusing to lay out, alter, widen or vacate any road, 
or revoking any previous order or decision relative to 
any road, or from the verdict of any jury in assessing 
damages in opening, [widening,] altering or vacating 


1 §96, act, April 11, 1873. 2 § 97, id. 3 § 98, itf. 


Sec. III.] UNDER TOWNSHIP ORGANIZATION. 


133 


any road, may appeal from such decision to three super¬ 
visors ot the county, outside of the town in which such 
road or proposed road is located, by giving a written 
notice of such appeal to the said commissioners of high¬ 
ways, and to at least three of the petitioners, and also 
to the same parties, a notice when and where such 
appeal will be tried, at least three days before such 
trial, within ten days after such decision has been filed 
in the office of the proper clerk ; and shall also present 
a written petition to some justice of the peace of the 
county, asking for an appeal, and stating on what 
grounds such appeal is taken. 1 

Notice to Commissioners of Appeal. 

To and Commissioners of Highways of the 

town of of the County of 

Sirs : Please take notice, That have appealed from 

your decision made on the day of 

A. D. 18 , a highway, as follows, to wit: 

and that Supervisor of the town of 

Supervisor of the town of 
and Supervisor of the town of 

1 § 99, act April 11, 1873. 

Upon a road appeal to three supervisors, it becomes the duty of the owner 
of the land affected by the location of the road to take notice of and follow 
up the appeal. 

Wells v. Hicks, 27 Ill. 343. 

It is sufficient, if the paper intended as an appeal from the order of the 
commissioners of highways to the supervisors under the road law, states the 
order appealed from, the-time when the order was filed, and the ground upon 
which the appeal is taken, and signed by the party appealing, and liled by 
him within the required time, together with the bond of the party, with sure¬ 
ties, to be approved by the clerk. 

Comm’rs of Highways v. Supervisors, 53 Ill. 320. 

Grounds of appear.— The statute does not require the grounds of such 
an appeal to he stated in the notices issued to the commissioners and peti¬ 
tioners, but only in the paper filed with the town clerk; and if the clerk, in 
issuing the notices, undertakes to set forth therein the grounds of the appeal, 
and misstates them, while it may be good reason for an application to the 
supervisors to postpone the hearing, it will not affect their jurisdiction over 
the subject matter of the appeal as set forth in the paper filed with the town 
clerk.— Id. 


134 


THE HIGHWAY SYSTEM. 


[Sec. III. 


in the County aforesaid, have been duly summoned by 

Esq., Justice of the Peace, and will meet at the 
in the town of aforesaid, 

on the , day of A. D. 18 , at 

o’clock M., for the purpose of hearing and determining said 
appeal; which appeal is taken for the purpose of 
the decision of said Commissioners in the said 

road; at which time and place you may appear and show cause, 
if any you have, why said decision should not be wholly reversed, 
and 

Dated at the day of A. D. 18 . 

Yours truly,- 


State of Illinois ,) 

-County. \ ss> 

being duly sworn, doth depose 
and say : That he did, on the day of 

A. D. 18 , make service of a notice in writing, of which the with¬ 
in is a true copy, upon and 

Commissioners of Highways of the town 
of in said County, by delivering one to each of 

said Commissioners. - 

Subscribed and sworn to before me this day of 

A. I). 18 . -1 - 


[Indorsement.] 

Notice of Appeal to Commissioners. 

Notice to Commissioners of Highways of 

in the matter of the appeal of 


Notice to Petitioners of Appeal. 

To and three of the petitioners who petitioned 

for the of the road hereinafter described: 

Sirs: Please take notice, That I have appealed from the decision 
of the Commissioners of Highways of the town of 
made on the day of A. D. 18 , 

a highway, as follows, to wit: 


and that 
and 

in the County of 
moned by 


Supervisor of the town of 
Supervisor of the town of 
Supervisor of the town of 

aforesaid, have been duly sum- 
Esq., Justice of the Peace, and will 












SEC. III.] UNDER TOWNSHIP ORGANIZATION. 


135 


meet at the in the town of aforesaid, 

on the day of A. D. 18 , at 

o’clock M., for the purpose of hearing and determining said 

appeal; which appeal is taken for the purpose of 
the decision of said Commissioners in the said 

road; at which time and place you may appear and show cause, 
if any you have, why said decision should not he wholly reversed, 
and 

Dated at the day of A. D. 18 . 

Yours truly,- 

State of Illinois ,) 

-County, f SS ‘ 

being duly sworn, doth depose 
and say: That he did, on the day of • 

A. D. 18 , make service of a notice in writing, of which the with¬ 
in is a true copy, upon and 

being three of the petitioners who peti¬ 
tioned for the of the said road, herein described, 

by delivering one to each of said petitioners. 

Subscribed and sworn to before me, this day of 

A. D. 18 . - 


[Indorsement.] 

Notice of Appeal to Three Petitioners, 

Notice to in the matter of the appeal of 

100. It shall be the duty of the justice of the peace 
to cause to be summoned three supervisors of the 
county to hear such appeal; and said supervisors shall 
fix upon a time and place when said appeal will he 
heard by them; and upon such appeal the said super¬ 
visors shall have the same power and authority that is 
by this act conferred on the commissioners of high¬ 
ways, not only in regard to the laying out, altering, 
widening or vacating any road, but shall have the same 
power to cause a jury to be called to assess damages, 
whenever the state of the proceedings requires it, and 
the supervisors cannot agree with the owners of land in 
regard to the same. 1 

c_> 


« § 100, act April 11. 1873. 













136 


THE HIGHWAY SYSTEM. 


[Sec. III. 


101. And they shall make a report of their proceed¬ 
ings and decision in the case, and in like manner that 
is by this act required by the highway commissioners, 
and shall be entitled to the same compensation; and 
their decision shall be final in regard to laying out, 
altering, widening or vacating such road, or in refusing 
to do the same, for one year after such decision. 1 

Order of Supervisor* on Road Appeal — Appeal from Decision 

Refusing Road. 

State of Illinois ,) _ 

-County. | 

Whereas, on the day of A. D. 18 , 

presented to Esq., 

a Justice of the Peace of the County of a petition, 

asking for an appeal from the determination of the Commission¬ 
ers of Highways of said town of in refusing to 

a highway, which refusal appears indorsed on 
the petition for said road, returned and filed in the office of the 
County Clerk of said County, on the day of 

A. D. 18 . And the said Justice of the Peace having summoned 

us, the undersigned, three Supervisors of said County, for the 
hearing of said appeal, and we, having met on the 

1 § 101, act April 11, 1873. 

Upon an appeal to the board of supervisors from the decision of the 
commissioners of highways, as to the laying out of a road, it will he sufficient 
if they examine that portion of the road against which the objections are 
urged. 

Comm’rs of Sonora r. Supervisors of, etc., 27 Ill. 141. 

An appeal to supervisors, in relation to laying out of roads, need not be 
addressed to them by name; if it is so addressed, the names may be regarded 
as surplusage. 

The People ex rel. v. Smith, 15 Til. ,320. 

Time of hearing an appeal.—T he supervisors on a road appeal should 
not agree upon.the time when they will consider a road appeal, until thirty 
days have expired after the filing of the order in the office of the town clerk 
from which the appeal is taken. 

Corley v. Kennedy, 28 Ill. 143. 

Notice. —Supervisors in the matter of opening a road, when they dismiss 
an appeal and adjourn, without any intention of further action, cannot 
resume the subject, unless notice of the time and place of a future meeting 
he served on the commissioners of highways, and on the three petitioners 
before served. Without this notice, the action of the supervisors is void. 

Keecli v. The People, 22 111. 478. 



SEC. III.] UNDER TOWNSHIP ORGANIZATION. 


137 


da y A. D. 18 , at o’clock M 

at* 

to hear the proofs and allegations of the parties, being the time 
and place fixed upon by us, when and where we would meet to 
consider such appeal; and it appearing that said Commissioners 
of Highways and three of the petitioners in said case had been 
duly notified of the time and place of such hearing, as required 
by law, did proceed to consider said appeal; and having heard 
the proofs and allegations of the parties, and such reasons as were 
offered for and against the of said road, we were 

of the opinion that the of said road was necessary 

and proper, and that the public interest will be promoted thereby, 
and that the decision of the said Commissioners should therefore 
be reversed. 

We therefore caused a survey and plat of said road to be made 
on the day of A. D. 18 , by 

a competent Surveyor, which plat and survey were to us duly 
reported, and are hereunto appended and made a part of this 
order ; and having ascertained the aggregate amount of damages 
to which the owner of the land over which said road was to 
pass entitled, and said damages having been definitely 

fixed byf 

we appointed the day of 18 , (being 

within thirty days after the total amount of damages was ascer¬ 
tained) at as the time and place to meet and finally 

determine upon the of said road, of which meeting 

we gave public notice by causing three notices to be posted in 
public places in said town not less than five days prior thereto; 
and having met at the time and place appointed, and the aggre¬ 
gate amount of damages on account of the of said 

road, to wit: the sum of dollars and 

cents, appearing to be not more than reasonable 
compensation, and to have been fairly and legally assessed, and 
the payment thereof not an unreasonable burden upon the tax¬ 
payers of the town, and the damages awarded to 
non-residents of the County, having been duly deposited with 

as by law required ; and having made 
such changes in the route of said road between the termini tliere- 

* If meeting is adjourned from time to time, by public announcement or 
notices posted, note such adjournment in space left at * 

t State in this space the method or methods by which damages were fixed, 
as by agreement, release and assessment by jury. If appeal was taken from 
the decision of jury, and said appeal was decided before the making of this 
order, state also that fact. 





138 


THE HIGHWAY SYSTEM. 


of, upon the survey and plat as reported by the Surveyor, as in 
our judgment the convenience and interest of the public required, 
as will fully appear from the description and plat hereinafter con¬ 
tained, it was finally determined that the said road be 

It is, therefore, hereby ordered and determined that the said 
road be and is hereby as follows, to wit: 

Beginning 

As shown by the plat hereunto annexed, and as so 

is declared a public highway of feet wide, the 

line of said survey being the centre of said road. 

In witness whereof, We, the said Supervisors, have hereunto 
set our hands, this day of A. D. 18 . 


Supervisor of the town of 


Super visor of the to wn of 


Supervisor of the town of 


PLAT REFERRED TO IN THE FOREGOING ORDER. 

Township No. Range No. of Principal Meridian 

County of 

lSee page , supra.) 


[Indorsement.] 
Order of Commissioners. 

road from 

Filed in the office of the Town Clerk this 
Recorded in road hook page 


to 

day of 

--, Town Clerk. 

18 . 

-, Town Clerk. 


Order of Supervisors on Road Appeal—Appeal from Decision 

in Favor of Road. 

State of Illinois ,) 

-County. \ ss ‘ 

Whereas, on the day of A. I). 18 

presented to Esq., 

a Justice of the Peace of the County of a petition 

asking for an appeal from the order and determination of the 
Commissioners of Highways of the town of in said 

County, in a highway, as contained in the order 

of said Commissioners, deposited with the Town Clerk, and filed 
in his office, on the day of A. I>. 18 

and the said Justice of the Peace having summoned us, the under¬ 
signed, three Supervisors of said County, for the hearing of said 












SEC. III.] UNDER TOWNSHIP ORGANIZATION. 


139 


appeal, and we having met on the day of 

A. D. 18 , at o’clock M., at 

to hear the proofs and allegation of the parties, 
being the time and place fixed upon by us, when and where we 
would meet to consider such appeal; and it appearing that said 
Commissioners of Highways and three of the petitioners in said 
case had been duly notified of the time and place of such hearing 
as required by law, did proceed to hear the proofs and allegations 
of the parties, and to consider said appeal; and we, being fully 
advised in the premises, do adjudge, order and determine that 
the order and determination of said Commissioners of Highways 
be and the same is 

In witness whereof, we have hereunto set our hands, this 
day of A. D. 18 . 

Supervisor of the town of 

Supervisor of the town of 

Supervisor of the toicn of 

Fees of Supervisors, day eac dollars. 

[Indorsement.] 

Order of Supervisor» in Cate of Road Appeal. 

In the matter of the appeal of made the 

day of A. D. 18 . 

102. Any parties taking an appeal from the award 
of the decision of the highway commissioners, or the 
verdict of the jury, shall pay the cost of such appeal, 
in case the award or the decision of the highway com¬ 
missioners, or the verdict of a jury, is in all things 
sustained; and shall tile a sufficient bond with the 
justice of the peace or town clerk before taking such 
appeal, guaranteeing such payment in such case.' 

i § 102, act April 11, 1873. 

The objection that the appeal bond given on appeal to three super¬ 
visors does not recite correctly the order of the commissioners, should be 
made before the supervisors. 

Town of Winfield v. Moft'att, 42 Ill. 47. 

Appeal bond.— Leave to file a more perfect bond to be given. Td. 

The objection, that TnE paiities appealing do not appear to be the 
owners or agents of the land, should be made before the three supervisors, 
so as to give opportunity to supply the proof. 

Green r. Green, 34 Ill. 320. 








140 THE HIGHWAY SYSTEM. [SEC. III. 

Road Appeal Bond to Three Supervisors—Appeal f rom Decision 

of Commissioners as to Road. 

Know all men by these presents, That we 
of the town of in the County of 

and State of Illinois, are held and firmly bound unto 

in the penal sum of dollars, for the 

payment of which, well and truly to be made, we bind ourselves, 
our heirs, executors and administrators, jointly, severally and 
firmly by these presents. 

Signed with our hands and sealed with our seals, this 
day of 18 . 

The condition of the above obligation is such, That whereas, 
the above bounden ha appealed from the 

decision of the Commissioners of Highways of the said town of 
in a highway from 

by their order bearing date the day of 

A. D. 18 . 

Now, therefore, if the above bounden shall 

promptly pay, or cause to be paid, all costs arising from said 
appeal, in case the determination of the Commissioners of High¬ 
ways in the premises shall be in all things sustained, then the 
above obligation to be void, otherwise to remain in full force and 
virtue. -, [seal.] 

-, [SEAL.] 


Signed, sealed and delivered in presence of 

The above bond of of the town of 

Illinois, approved by me this day of A. D. 18 . 

-, Town Clerk. 

[Indorsement.] 

Road Appeal Bond to Supervisors. 

Bond of 

Securities. 

Filed this day of A. D, 18 , in the oliice 

of the Town Clerk of the town of -, Town Clerk. 

103. The decision of a majority of the supervisors 
in any appeal case shall he taken as the decision of 
said supervisors. 1 

104. When the commissioners of highways of one 

Cl %/ 


1 § 103, act April 11, 1873. 














SEC. III.] UNDER township organization - . 


141 


town disagree with the commissioners of highways of 
an adjoining town in regard to the laying out of a 
new road, or the alteration, widening or vacation of 
an old road, on any county or town line, appeals may 
be taken from such decision in the same manner as set 
forth in section ninety-nine of this act: Provided , 
that when such decision is in regard to a road on a 
county line, two supervisors and one commissioner of 
highways shall he selected from one county, and two 
commissioners of highways and one supervisor shall 
lie selected from the other. The conn tv from which 
the two supervisors shall be selected shall he deter¬ 
mined by the party or parties taking the appeal, and 
the justice of the peace shall issue his summons 
accordingly . 1 

105. All roads heretofore laid out upon town or 
county lines, shall be divided, allotted and kept in 
repair in the manner as hereinbefore directed. A 113 ’ 
public road tha*t is or shall hereafter be laid out on a 
county or town line, shall lie held to be a road on a 


1 § 104, act April 11, 1873. 

The statute allows an appeal to be taken from the decision of the commis¬ 
sioners of highways to supervisors, when a highway, to be laid out, is on the 
line between two towns. 

Warne v. Baker, 24 Ill. 351. 

Adjoining a town line but wholly within one town.— A road may be 
thus located by the commissioners without joint action with the commis¬ 


sioners of the adjoining town. 

Mack v. Comm’rs of Highways, 41 Ill. 378. 

When a road is located on a dividing line between townships, the com¬ 
missioners of the towns must create road districts, and allot the expense of 


keeping up the road among the districts as nearly equal as possible, giving 
each town an equal number of districts, each road district to be attached to 
the town in which it lies, and a record of the partition and allotment to be 
made in the office of the town clerks of each of the respective towns. With¬ 
out such an allotment the road cannot be opened, neither of the towns having 

P ° WOr *° aCt Keech The People, 22 Ill. 478. 

The commissioners of one town have the right to locate a road wholly 
within their town, though adjoining the town line, without joint action with 
the commissioners of the adjoining town. 

Mack Comm’rs of Highways, 41 111. 378. 


142 


THE HIGHWAY SYSTEM. 


[Sec. III. 


county or town line, although, owing to the topogra¬ 
phy of the ground along said county or town line, or 
at the crossing of any stream of water, the- proper 
authorities, in establishing or locating such road, may 
have located a portion of the same to one side of such 
county or town line. 1 


i § 105, act April 11, 1873. 

The president and trustees of a town incorporated under the general 
law have authority to open streets; and a party aggrieved with the assess¬ 
ment of damages need not apply to the president of the board to set aside 
the inquisition, but may appeal to the circuit court as soon as ten days shall 
have expired; and the circuit court can only determine the amount of dam¬ 
ages sustained by opening the street, or reverse the proceedings if irregular. 
It cannot inquire into the expediency of opening the street. 

Dunlap v. Trustees etc. of Mt. Sterling, 14 Ill. 251. 

In a proceeding to open a street in the city of Peoria, the owner of prop¬ 
erty offered to prove before the county court, which was to confirm the report 
of commissioners, that the commissioners had prejudged his case, and that 
proof before them by him would have been useless. Held, that the evidence 
should have been admitted, as well as affidavits, showing the value of the 
property, its condition, and the benefits and injuries to it from opening the 
street- 

Cole v. City of Peoria, 18 Ill. 301. 

When the road established from Peoria to Rock Island, by the act of Feb. 
11, 1853, was viewed, located, and reported by commissioners, the damages 
assessed for that purpose became payable absolutely, and the county court 
could not lawfully withhold them. 

County of Peoria v. Ilarvey, 18 Ill. 304. 

Vacating of.—T he owner of lots abutting on only one side of a street 
cannot vacate it. 

Leech v. Waugh, 24 Ill. 228. 

Vacation of, located by township authorities.— A public road located 
by highway commissioners must be opened in five years, or the right of way 
will revert to the owner of the land, and the road become vacated. To avoid 
the vacation of a road thus laid out and located, it is necessary that it should 
be opened its entire length within five years. It is not sufficient to open only 
a part of such road. 

Green v. Green, 34 Ill. 320. 

Injunction, to stay the opening of such a road.— If the town authori¬ 
ties fail to procure the right of way, and fail to provide means to pay for the 
same, until the day before the five years expire, and it is apparent that the 
road cannot be opened within the time, a court of equity may restrain the 
town officers from opening a small portion of the road before the time 
expires.— Id. 

Equity will not permit a road to be established through a township simply 
for the purpose of procuring a road for a part of the distance. To permit 
such proceedings for that purpose would operate unjustly, if not as a fraud 
upon property holders.— Id. 


SEC. III.] UNDER TOWNSHIP ORGANIZATION. 


143 


IOC. Roads may be laid out and opened upon the 
line between this and any adjoining state, as provided 
in the preceding sections, whenever the laws of such 
adjoining state shall be applicable. 1 

107. Bridges over streams which divide towns or 
counties, and bridges over streams on roads on county 
or town lines, shall be built and repaired at the equal 
expense of such towns or counties: Provided , that for 
the building and maintaining of bridges over streams 
near county or town lines, in which both are equally 
interested, the expense of building and maintaining 
any such bridges shall be borne equally by both coun¬ 
ties or towns. 2 

108. For the purpose of building or keeping in 
repair such bridge or bridges, it shall be lawful for the 
commissioners of highways of such adjoining towns 
or counties to enter joint contracts, and such contracts 
may be enforced, in law or equity, against such com¬ 
missioners jointly, the same as if entered into by 
individuals, and such commissioners may be proceeded 
against jointly, by any parties interested in such 
bridge or bridges, for any neglect of duty in reference 
to such bridge or bridges, or for any damages growing 
out of such neglect. 3 

109. If the commissioners of highways of either of 
such towns, after reasonable notice in writing from the 
commissioners of highways of any other such towns, 
shall neglect or refuse to build or repair any such 
bridge, when any contract or agreement has been 
made in regard to the same, it shall be lawful for the 
commissioners so giving notice to build or repair the 
same, and to recover by suit one-half (or such amount 
as shall have been agreed upon) of the expense of so 
building or repairing such bridge, with costs of suit 

>§ 106, act April 11, 1873. 2 § 107, vL 3 § 108, Id. 


144 


THE HIGHWAY SYSTEM. 


[Sec. III. 


and interest from the time of the completion thereof, 
from the commissioners so neglecting or refusing. 1 

110. Any judgment so recovered against the com¬ 
missioners of highways, or either of such towns, shall 
be a charge on such town, unless the court shall certify 
that the neglect or refusal of such commissioners 
was willful or malicious, in which case only such com¬ 
missioners shall be personally liable for such judgment, 
and the same may be enforced against them in their 
personal and individual capacity. 2 

111 . When it shall be necessary to build, construct 
or repair any bridge or road in any town, which 
would be an unreasonable burden to the same, the 
cost of which will be more than can be raised in one 
year by ordinary road taxes in such town, the commis¬ 
sioners of highways shall present a petition to the 
county board of the county in which such town is 
situated, praying for an appropriation from the county 
treasury to aid in the building, constructing or repair¬ 
ing of such bridge or road, and such county board 
may, a majority of all the members elect voting for 
the same, make an appropriation of so much for that 
purpose as, in their judgment, the nature of the case 
requires and the funds of the county will justify; said 
appropriation to be expended under the supervision ot 
an authorized agent or agents of the county, if the 
county board shall so order. 3 

112 . When it shall be necessary to build a bridge in 
any town which would require a larger sum of money 
to complete than is authorized to be raised by taxation 
under the constitution upon a single year’s assessment, 
the commissioners of highways shall petition the super¬ 
visor of the town to call a special town meeting to vote 
on the proposition “ to borrow money to build a bridge,” 

»§ 109, act April 11, 1873. 2 § 110, id. 3 § 111, id. 


SEC. III.] UNDER TOWNSHIP ORGANIZATION. 145 

which said petition shall be signed by said commission¬ 
ers in their official capacity, and by at least twenty-five 
freeholders of such town; and thereupon said petition 
shall be filed in the office of the town clerk of such 
town. Upon the filing of said petition the supervisor 
shall order the town clerk, by an instrument in writ¬ 
ing, to be signed by him, to post up in four of the 
most public places in said town, notices of such special 
town meeting; which notice shall state the object, 
time and place of meeting, and the manner in which 
the voting is to be had, which shall be invariably by 
ballot, and shall be “to borrow money to build a 
bridge,” when the voter desires to vote in favor of 
that proposition, and “ against the proposition to bor¬ 
row money to build a bridge,” when the voter desires to 
vote against said proposition. The special town meet¬ 
ing shall be held and returns thereof made in the same 
manner as other special town meetings are now or 
may hereafter be provided by law; and if it shall 
appear that a majority of the legal voters voting at 
said election shall be in favor of said proposition, the 
supervisor and town clerk, acting under the direction 
of the commissioners of highways of said town, shall 
issue from time to time, as the work progresses, a suffi¬ 
cient amount in the aggregate of the bonds of said 
town for the purpose of building such bridge; such 
bonds to be of such denominations, bear such rate ot 
interest, not exceeding ten per cent., upon such time, 
and be disposed of as the necessities and conveniences 
of said town officers require: Provided , that said 
bonds shall not be sold or disposed of for less than 
their par value, and such town shall provide for the 
payment of such bonds and the interest thereon by 
appropriate taxation. 1 

1 § 112, act April 11, 1873. 


7 


146 


THE HIGHWAY SYSTEM. 


[Sec. III. 


113. Upon the petition of twelve legal voters it 
shall be the duty of the commissioners of highways of 
each town, within a reasonable time, to employ a com¬ 
petent surveyor, and have any road or roads designated 
in such petition in their several towns re-surveyed, and 
plats thereof made, which plats and surveys shall be by 
them tiled for record in the office of the town clerk: 
Provided , that this section shall not apply where the 
same has been already done, unless the exact location 
of such road is uncertain. 1 

114. The establishment of a new road on the route 
of a road already established according to law, shall 
not vacate the road previously established, unless such 
vacation is prayed for in the petition, and so declared 
in the order establishing the new road. 2 

115. The commissioners of highways of the several 
towns are hereby authorized to contract for the build¬ 
ing and repairing of bridges in their respective towns, 
and they may let such contracts by a public letting to 
the lowest responsible bidder, upon proper notice being 
given by posting copies of such notice in at least three 
public places in their town, not less than ten days 
before the time of such public letting ; or if they deem 
it to be to the interest of their town, they may, to an 
amount not exceeding twenty-five dollars, privately 
contract with persons, as they shall deem best, for put¬ 
ting bridges in good repair; but in no case shall such 
contracts exonerate such commissioners from liability 
for failure to keep such bridges in repair. 3 

116. Provided , that the collector of taxes shall 
receive from any taxpayer, in payment of said tax¬ 
payer’s road and bridge tax, any order of the commis¬ 
sioners of highways, on their treasurer, for work done 
oil or material furnished for the construction or repairs 

*§ 113. act April 11,1873. 2 § 114, id. 8 § 115, id. 


SEC. III.] UNDER TOWNSHIP ORGANIZATION. 147 

of the highways or bridges, in any sum not to exceed 
the amount of such person’s road and bridge tax then 
due. 1 

117. Whenever a public road is ordered to he estab¬ 
lished or altered, according to the provisions of this 
act, which road shall pass through or on inclosed land, 
the commissioners of highways shall give the owner 
or occupant of such land sixty days’ notice, in writing, 
to remove his fences. If such owner or occupant does 
not remove his fences within sixty days after such 
notice, the commissioners shall cause the same to he 
removed, and direct the road to be opened and 
worked; and such owner shall forfeit to such commis¬ 
sioners the sum of one dollar for every day he shall 
permit his fences to remain after the expiration of said 
sixty days, and shall pay all necessary cost of removal, 
to be collected by said commissioners before any justice 
of the peace having jurisdiction. 2 

Notice for Removal of Fences. 

To Esq., 

Sir : You will take notice that the Commissioners of Highways 
of the town of in the County of 

and State of Illinois, have laid out a public highway, agreeably to 
the order of said Commissioners, bearing date the 
day of A. D. 18 , a copy of which is hereunto 

annexed, which highway passes through certain inclosed lands 

by you, being known and described as follows, 

to wit: 

You are, therefore, hereby notified and required to remove your 
fences from within the bounds of said highway, within sixty days 
after the service of this notice. 

Dated at this day of 18 . 


Com missioners of High ways. 


i § 116, act April 11, 1873. 2 § 117, id. 








148 


THE HIGHWAY SYSTEM. 


[Sec. III. 


118. The commissioners of highways shall receive 
for their services the sum of one dollar and fifty cents 
per day for each day necessarily employed in the per¬ 
formance of their duties, the same to be audited by the 
town auditors and paid out of the town funds. 1 

119. All highways laid out by order of the commis¬ 
sioners or supervisors, on appeal, shall be opened within 
five years from the time of laying out the same. If 
not opened within the time aforesaid, the same shall be 
deemed to be vacated. 2 

120 . The highway commissioners of each town shall, 
annually, ascertain, as near as practicable, how much 
money must be raised by tax on real and personal pro¬ 
perty for the making and repairing of bridges, the 
payment of damages by reason of the opening, alter¬ 
ing and laying out of new roads, the purchase of the 
necessary tools, implements and machinery for working 
roads ; the purchase of the necessary material for build¬ 
ing or repairing roads and bridges, the pay of the 
overseers of highways during the ensuing year ; and 
shall levy a tax on all the real and personal property 
in said town, not exceeding forty cents on the one 
hundred dollars; and they shall give to the supervisor 
of the township, and in Cook county to the county 
board, a statement of the amount necessary to be raised, 
and the rate per cent, of taxation, signed by said com¬ 
missioners, or a majority of them, on or before the 
Tuesday next preceding the annual September meet¬ 
ing of the board of supervisors, or the county board in 
Cook county, who shall cause the same to be submitted 
to said board for their action at such September meet¬ 
ing of said board: Provided , that if the commission¬ 
ers of highways, or any three legal voters, shall give 


1 § 118, act April 11, 187A 2 § 119, id. 


Sec. III.] UNDER TOWNSHIP ORUANIZATION. 


149 


notice, by posting notices in at least three of the most 
public places of the town at least ten days before the 
annual town meeting, that a larger amount of money 
will be required for the purpose of constructing or 
repairing roads or bridges in their town than can be 
realized from the real and personal property tax author¬ 
ized by law to be assessed by the commissioners, the 
legal voters present at such meeting may authorize an 
additional amount to be raised by tax, not exceeding 
sixty cents on each one hundred dollars’ valuation, and 
said board shall cause the same to be extended on the 
tax books. 1 

NOTICE OF APPLICATION FOR ADDITIONAL APPROPRIATION. 

Notice is hereby given to the electors of the town of 
in the County of , That the Commissioners of High¬ 

ways of said town are of opinion that the sum of 

dollars, as now allowed by law, will be insufficient to 
pay the expenses actually necessary for the improvement of roads 
and bridges in said town, and that the additional sum of 

dollars is necessary to make a bridge across the 
creek near (or to repair the bridge, 

etc., or to improve the road at, etc .); and that we, the undersigned, 
Commissioners of Highways of said town, shall, at the next 
annual town meeting of said town, to be held at 
on the day of next, apply in open 

town meeting for a vote authorizing the said sum of 
to be raised for the purpose aforesaid. 

Dated at this day of 18 , 

121. According to the amount certified as aforesaid, 
the county clerk, when making out the tax books for 
state and county taxes for the collector, shall extend the 
necessary tax in a separate column against each tax¬ 
payer’s name, or taxable property, as other taxes are 
extended, which shall be collected the same as state and 
county taxes. 2 

i § 120, act April 11, 1873. 2 § 121, id, 



150 


THE HIGHWAY SYSTEM. 


[Sec. III. 


122 . It shall be the duty of the county clerk to make 
out and deliver, on demand, to the treasurer of the 
commissioners of highways, a certificate of the aggre¬ 
gate amount of tax so levied and placed among the tax 
books. 1 

123. The tax so collected shall be paid to the trea¬ 
surer of the commissioners of highways, except as pro¬ 
vided in section sixteen (16) of this act, by the collector, 
as fast as the same is collected, except such rate per 
cent, as shall be allowed for collecting the same. 2 

124. The commissioners of highways shall furnish 
to the clerk of the county court, previous to the first 
day of October in each year, a list of taxpayers (alpha¬ 
betically arranged) of each district. 3 

125. Any tax or moneys collected by the township 
or county collectors of the various counties for road and 
bridge purposes under the provisions of an act entitled 
“ An act in regard to roads and bridges,” approved April 
10 , 1872, shall be paid by said collectors to the trea¬ 
surer of commissioners of highways, and be by said 
commissioners, after reserving sufficient to pay for the 
purchase of implements and the payment of damages, 
and the pay of the overseers, distributed to the over¬ 
seers of highways of the various road districts from 
which it was collected, as near as may be. Said mon¬ 
eys shall be used by said overseers in improving the 
roads and bridges in their respective towns. 4 

126. That an act entitled “ An act in regard to 
roads and bridges,” approved April 10, 1872, and in 
force August 15, 1872, so far as the same relates to 
counties under township organization, and also all 
other acts or parts of acts inconsistent herewith, be 
and the same are hereby repealed : Provided , that the 


1 § 122, act April 11, 1873. 2 § 123, id. 2 § 124, id. * § 125, id. 


Sec. IV.] 


STREETS AND ALLEYS. 


151 


repeal ol said act shall not affect any suitor proceeding 
pending, or impair any right existing at the time this 
act shall take effect. 1 


127. Whereas an 
act shall take effect 
passage. 2 


emergency exists; therefore this 
and be in force from and after its 


SECTION IV. 

STREETS AND ALLEYS. 

1. A street is a highway in a city or village; its uses; nuisances. 

2. Special assessments upon lots for the expenses of opening, widening, 
improving and the like. 

3. The statutes and decisions in Illinois. 

4. The right of eminent domain. 

1. A street is a public thoroughfare or highway in a 
city or village. 3 A street, besides its use as a highway 
for travel, may be used for the accommodation of drains, 
sewers, aqueducts, water and gas pipes, lines of tele¬ 
graph, and for other purposes conducive to the general 
police, sanitary and business interests of a city. 4 A 
street may be used by individuals for the lading 
and unlading of carriages, for the temporary deposit of 
movables or of materials and scaffoldings for building 
or repairing, provided such use shall not unreasonably 
abridge or incommode its primary use for travel. 6 So 
a sidewalk which is part of a street may be excavated 
for a cellar, pierced by an aperture for the admission of 
light, or overhung by an awning. Rut if the highway 
becomes more unsafe, and a passenger is injured by 
reason thereof, the individual so using the street will 

i § 126, act April 11, 1873. 2 § 127, id. 

3 4 Serg. & R. Penn. 106; 11 Barb. N. Y. 309. 

« Aurora v. Reed, 58 Ill. 20; 10 Barb. N. Y. 26, 360; 15 id. 210; 17 id. 435; 2 
R. I. 15. 

8 6 East. 427; 3 C'ampb. 230; Hawkins, PI. Cr. c. 76. s. 49; 4 Ad. & E. 405; 4 
Iowa 109; 1 Den. N. Y. 524; 1 Serg. & R. Penn. 219. 



152 


THE HIGHWAY SYSTEM. 


[Sec. IV. 


be responsible for the damages but an individual lias 
no right to have an auction in a street, 2 or to keep a 
crowd of carriages standing therein, 3 or to attract a dis¬ 
orderly crowd to witness a caricature in a shop window. 4 
Such an act constitutes a nuisance. 6 The owners of 
lands adjoining a street are not entitled to compensa¬ 
tion for damages occasioned by a change of grade or 
other lawful alteration of the street, 6 unless such dam¬ 
ages result from a want of due skill and care, or an 
abuse of authority. 7 

2. Under the statutes of several of the states, assess¬ 
ments are levied upon the owners of lots specially 
benefited by opening, widening or improving streets, 
to defray the expense thereof; and such assessments 
have been adjudged to be a constitutional exercise of 
the taxing power. 8 

3 . Under the statute in Illinois, 9 towns are platted 
and laid out, and the land intended for streets, alleys, 
ways, commons or other public uses, in any town or 
city, or addition thereto, thereby transferred to the cor¬ 
porate authorities in trust. 10 A proprietor of land who 
lays it out under the statute into town or city lots, vests 
the legal title to the lands embraced by streets in the 
corporation of the town or city, for the use and benefit 
of the public; it is a solemn dedication of the ground 
to the corporation, to be held in trust for the uses and 
purposes of the public. 11 

1 18 N. Y. 79-84 ; 4 Carr. & P. 262; 23 Wend. N. Y. 446 ; 3 Cush. Mass. 174; 6 
id. 524; 13 Mete. Mass. 299. 2 13 Serg. & R. Penn. 403. 

3 3 Campb. 230. 4 6 Carr. & P. 636. 

5 Angell, High. c. 6. 

6 Aurora v. Reed, 58111. 29; 4 Term, 794 ; 2 Barn. & Aid. 403; 1 Pick. Mass. 
417; 4 N. Y. 195; 18 Penn. St. 87; 14 Mo. 20; 2 R. I. 154; 6 Wheat. 593; 20 
How. 135. 

7 Aurora v. Reed, 58 Ill. 29; 3 Wils. 461; 5 Barn. & Aid. 837; 1 Sandf. N. 
Y. 22; 16 N. Y. 158, and note. 

8 See Ill. Digest, Chicago; 4 N. Y. 419; 8 Wend. N. Y. 85; 18 Penn. St. 26; 

21 id. 147; 3 Watts, Penn. 293; 23 Conn. 189; 5 Gill, Md. 3&3; 27 Mo. 209; 4 R. I. 
230; Angell, Highways, c. 4. » §§ 17-27, Div. I, c. 25, R. S. 1845. 

10 1 Gross 102, 103. 77 Canal Trustees v. Havens, 11 Ill. 554. 


Sec. IV.] 


STREETS AND ALLEYS. 


153 


surveyor’s certificate . 1 

State of Illinois,) 

-County. \ SB ' 

This is to certify that at the request of A B, the owner of the 
land described as follows, to-wit: ( here describe the land with legal 
certainty) at in said County, I have this day surveyed and 

platted (so much of) the said land as is shown by the above and 
foregoing plat or map into blocks and lots, streets and alleys and 
public park, as designated on said map. 

Dated A. D. 18 . CD, 

County Surveyor. 

proprietor’s acknowledgment . 1 

State of Illinois,) 

-County, f s ' 

Personally appeared this day before me, the undersigned, a 
Justice of the Peace of said county, A B, to me personally 
known to be the same person named in the foregoing certificate 
of C D, and acknowledged the within map or plat of land to be his 
free act and deed for the uses and purposes therein mentioned 
and designated. 

Dated A. D. 18 . L M, 

J. P} 

A map is not essential; if the owners agree upon a 
place, make a survey and lay off ground for public use 
as a street or landing, and make sales in reference 
thereto, it amounts to a dedication of such ground to 
the public. 3 No particular form is requisite to estab¬ 
lish a grant by dedication; it is purely a question of 
intention. 4 Parol dedications are good. 5 They may 
be manifested by consent or acquiescence, 6 and may be 
presumed, e. g. where the public have uninterruptedly 
used a road for twenty years, 7 and are questions of fact 


4 §§ 17-27, c. 25, Div. I; c. 25 R. S. 1845. 

2 It seems a notary is not authorized to take this acknowledgment. See 
§ 21 id. ; 1 Gross 102; but see § 16, c. 24, Ii. S. 1845; 1 Gross 86, 87. 

3 Godfrey v. The City of Alton, 12 Ill. 30. 

4 Marcy v. Taylor, 10 Ill. 634; Waugh v. Leech, 28 Ill. 488; Reesv. Chicago, 
38 Ill. 322. 

5 Warren v. The Towu of Jacksonville, 15 Ill. 236. 

« Dimon v. The People, 17 HI. 422; Marcy v. Taylor, 19 Ill. 634. 

7 Green v. Oakes, 17 Ill. 249, , 




154 


THE HIGHWAY SYSTEM. 


[Sec. IV. 


for a jury. 1 The public is an ever-existing grantee. 8 
Dedication can be made only by the owner of the 
ground. 3 Streets dedicated forever remain to the use 
of the public. 4 Acceptance by the public authorities 
is essential to consummate the grant. 6 The fee, when 
dedicated, is held by the corporation in whom it vests, 
in trust, and cannot be sold or aliened ; nor can the land 
be used for any other purpose than that for which it 
has been dedicated.® Streets and alleys, however, may 
be vacated and laid out, widened, re-located, etc. The 
general incorporation act, as well as the charters of 
cities, towns and villages, prescribe how this is to be 
done. 

4. The right of eminent domain, a sovereign power, 
the power to take private property for public use, 
underlies all statutes and proceedings whereby private 
property is taken for public use. 7 It can be exercised 
only by making to the owner just compensation, 8 and 
is applicable only to the condemnation of property, 9 
and for public, not private, purposes. So that a cart¬ 
way or private road cannot be established over lands 
against the objections of owners, 10 as prescribed by the 
statute; such statute is repugnant to the constitution. 11 

1 Alvorcl v. Ashley, 17 Ill. 3(59. 

2 Warren v. The Town of Jacksonville, 15 Ill. 236; Alvorcl v. Ashley, 17 
111.363. 

3 Gentlemen V. Soule, 32 Ill. 271. 

4 Waugh v. Leech, 28 III. 488. 

5 Rees v. Chicago, 38 Ill. 322; Daniels v. The People, 21 Ill. 442; Marcy v. 
Taylor, 19 Ill. 634. 

6 City of Alton v. Illinois Trans. Co., 12 I1L 38. 

7 Johnson v. Joliet, etc. R. R. Co., 23 Ill. 202 ; 6 IIow 529; 11 Pet. 420; 23 
Pick. Mass. 361; 2 Kent’s Com. 239 n. 

8 Chicago V. Larned, 34 Ill. 203; Chicago v. Laflin, 49 Ill. 172; The People v. 
Williams, 51 HI. 63. 

9 Harward v. St. Clair Drain Co., 51 Ill. 130; Hessler v. Drainage Co., 53 
Ill. 105. 

10 Nesbitt v. Trumbo., 39 Ill. 110; Crear v. Crossby, 40 Ill. 175. 

11 Id. 


\ 


Sec. V. 1 


RIVERS AND FERRIES. 


155 


SECTION V. 

RIVERS AND FERRIES. 

1. A river is a natural stream of water. 

2. Rivers are either public or private, navigable or not navigable. 

3. The bed or soil of rivers, by whom owned. 

4. Rivers which are navigable highways. 

5. Private rivers. 

0. A ferry defined. 

7. The franchise a grant. 

8. Establishment of ferries. 

9. A ferry franchise is an incorporeal hereditament; it descends to heirs, 
and is real estate. 

10. The owners of ferries are common carriers; their rights and liabilities. 

11. Abridge defined. 

12. Bridges either public or private. 

13. Toll bridges. 

14. The expense of bridges, how assessed. 

15. Dedication. 

16. Repairs. 

17. Highways; the law of the road applicable to them. 

18. Private bridges. 


1. A river is a natural stream of water flowing be¬ 
twixt banks or walls in a bed of considerable depth 
and width, being so called whether its current sets 
always one way or flows and reflows with the tide. 1 

2. Rivers are either public or private. Public rivers 
are divided into navigable and not navigable — the dis¬ 
tinction being that the former flow and reflow with the 
tide, which the latter do not. Both are navigable in 
the popular sense of the term. 2 

3. At common law, the bed or soil of all rivers, sub¬ 
ject to the ebb and flow of the tide to the extent of 
such ebb and flow, belongs to the crown; and the bed 
or soil of all rivers above the ebb and flow of the tide, 
or in which there is no tidal effect, belongs to the 
riparian proprietors, each owning to the centre or 
thread, — ad filum aquai , — where the opposite banks 
belong to different persons. In this country the com- 

1 Woolrych, Wat. 40 ; 16 N. H. 467. 

2 Angell, Tide, Wat. 74, 75 ; 7 Pet. 324 ; 26 Wend. N. Y. 404 ; 5 Taunt. 705. 


156 


THE HIGHWAY SYSTEM. 


[Sec. V. 


mon law has been recognized as the law of many of 
the states, the state succeeding to the right of the 
crown ; x but in Pennsylvania, North Carolina, South 
Carolina, Iowa, Mississippi, and Alabama, it has been 
determined that the common law does not prevail, and 
that the ownership of the bed or soil of all rivers navi¬ 
gable for any useful purpose of trade or agriculture, 
whether tidal or fresh-water, is in the state. 2 At com¬ 
mon law the ownership of the crown extends to high- 
water mark, 3 and in several states of this country the 
common law has been followed ; 4 but in others it has 
been modified by extending the ownership of the ripa¬ 
rian proprietor, subject to the servitudes of navigation 
and fishery, to low-water mark, 6 unless these decisions 
may be explained as applying to fresh-water rivers. 6 
In England many rivers originally private have be¬ 
come public as regards the right of navigation, either 
by immemorial use or by acts of parliament. 7 

4. In this countrv all rivers, whether tidal or fresh- 
water, are, of common right, navigable highways, if 
naturally capable of use for the boating of vessels, boats, 
rafts, or even logs, or “ whenever they are found of 
sufficient capacity to float the products of the mines, 
the forests, or the tillage of the country through which 
they How, to market.” 8 The state has the right to im¬ 
prove all such rivers, and to regulate them by lawful 
enactments for the public good. 9 Any obstruction of 
them without legislative authority is a nuisance, and 

1 4 Pick. Mass. 268 ; 26 Wend. N. Y. 404 ; 1 Halst. N. J. 1 ; 4 Wis. 486. 

2 2 Binn. Penn. 475 ; 3 Iowa, 1 ; 20 Miss. 21 ; 11 Ala. 436. 

3 Angell, Tide, Wat. 60-71 ; 3 Barn. & Aid. 067 ; 5 id. 268. 

4 12 Barb. N. Y. 616 ; 7 Pet. 324 ; 3 How. 221 ; 25 Conn. 346. 

5 28 Penn. St. 206 ; 11 Ohio, 138. 

8 2 Smith, Lead. Cas. 224. 

7 Woolrych, Wat. 40. 

8 8 Barb. N. Y. 230 ; 18 id. 277 ; 31 Me. 0 ; 42 id. 552 ; 20 Johns. N. Y. 90 : 
5 Ind. 8. 

9 31 Me. 361 ; 5 Ind. 13 ; 20 Miss. 21. 


Sec. V.] 


RIVERS AND FERRIES. 


157 


any person having occasion to use the river may abate 
the same, or, if injured thereby, may receive his dam¬ 
ages from its author. 1 By the ordinance of 1787, art. 
4, relating to the northwestern territory, it is provided 
that the navigable waters leading into the Mississippi 
and St. Lawrence, and the carrying places between the 
same, shall be common highways and forever free. 2 

5. Rivers, when naturally unfit for public use, as 
above described, are called private rivers. They are 
the private property of the riparian proprietors, and 
cannot be appropriated to public use as highways, by 
deepening or improving their channels, without com¬ 
pensation to their owners. 3 A river, then, may he 
considered, as private in the case of shallow and 
obstructed streams; as private property, but subject to 
public use, when it can be navigated; and as public, 
.both with regard to its use and property. Some rivers 
possess all these qualities. The Hudson is mentioned 
as an instance; in one part it is entirely private prop¬ 
erty, in another the public have the use of it; and it 
is public property from the mouth as high up as the 
tide Hows. 4 

6. A ferry is a liberty to have a boat upon a river 
for the transportation of men, horses and carriages, with 
their contents, for a reasonable toll. 5 The term is also 
used to designate the place where such liberty is exer¬ 
cised. 6 In England, ferries are established by royal 
grant or by prescription, which is an implied grant; in 
the United States, by legislative authority, exercised 
either directly or by a delegation of powers to courts, 

j Angell, Tide, Wat, 111-123 ; 28 Penn. St. 195 ; 4 Wis. 454 ; 6 Cow. N. Y. 
518. 

2 3 Story U. S. Laws, 2077 ; 29 Miss. 21 ; 2 Mich. 519. 

3 26 Wend. N. Y. 404 ; 6 Barb. N. Y. 265 ; 18 id. 277 ; 8 Penn. St. 379. 

4 Angell, Wat. Course, 205, 206 ; 6 Barb. N. Y. 265. 

5 42 Me. 9 ; 3 Zabr. N. J. 206 ; Woolrych, Ways, 217. 

6 4 Mart, La. N. S. 426. 


158 


THE HIGHWAY SYSTEM. 


[Sec. V. 


commissioners or municipalities. 1 Without such au¬ 
thority no one, though he may be the owner of both 
banks of the river, has the right to keep a public ferry ; 2 
though after twenty years’ uninterrupted use such 
authority will be presumed to have been granted. 3 

7. The franchise of a ferry will, in preference, be 
granted to the owner of the soil, but may be granted to 
another; and by virtue of the right of eminent domain 
the soil of another may be condemned to the use of the 
ferry, upon making just compensation. 4 * 6 If the termini 
of the ferry be a highway, the owner of the fee will 
not be entitled to compensation ; s though in Pennsyl¬ 
vania a different doctrine prevails. 8 

8. One state has the right to establish ferries over a 
navigable river separating it from another state or from 
a foreign territory, though its jurisdiction may extend 
only to the centre of such river ; and the exercise of* 
this right does not conflict with the provision in the 
constitution of the United States conferring upon con¬ 
gress the power “ to regulate commerce with foreign 
nations, and among the several states,” nor with any 
law of congress upon that subject. 7 A state may at its 
pleasure erect a new ferry so near an older ferry as to 
impair or destroy the value of the latter by drawing 
away its custom, unless the older franchise be protected 
by the terms of its grant. 8 But if an individual, with- 

1 7 Pick. Maes. 344 ; 11 Pet. 420 ; 20 Conn. 218 ; 18 Ark. 19. 

2 3 Mo. 470 ; IB Ill. 27 ; 11 Pet. 420 ; Willes, 508. 

y 2 Dev. N. C. 402; 3 Scam. 53 ; 7 Ga. 348. 

4 But see Mills v. County Commissioners, 3 Scam. 53; Trustees v. Tatman, 
13 Ill. 27; 6 Barnew. & C. 703; 5Yerg. Tenn. 189; 9 Ga. 359; 8Me. 365; 2 Cal. 262. 

0 3 Kent, Com. 421 n.; 4 Zabr. N. J. 718; 7 Gratt. Va. 205. 

6 1 Yeates, Penn. 167; 9 Serg. & R. Penn. 31; 3 Watts. Penn. 219; see 1 
Gross’ Stat. 293,297; Betts v. Menard, Breese, appendix 10. 

7 11 Wend. N. Y. 586; Gear v. Bullerdick, 34 111. 75; 3 Yerg. Tenn. 387; 3 
Zabr. N. J. 206; 2 Gilmer, Va. 197; 16 B. Monr. Ky. 699; Mills v. Brown, 2 
Scam. 549. 

8 15 Pick. Mass. 243; 2 Gilm. 197; Mills v. County of St. Clair, 2 Gilm. 197; 
Gales v. Anderson, 13 Ill. 413; 6 How. 507; 25 Wend. N. Y. 628. 


Sec. V.] 


RIVERS AND FERRIES. 


159 


out authority from the state, erect a new ferry so near 
an older ferry, lawfully established, as to draw away 
the custom of the latter, such individual will be liable 
to an action on the case for damages, or to a suit in 
equity, for an injunction in favor of the owner of the 
latter. 1 

9. The franchise of a ferry is an incorporeal heredita¬ 
ment, and as such it descends to heirs, is subject to 
dower, may be leased, sold and assigned ; 2 but, never¬ 
theless, being a franchise in which the public have 
rights and interests, it is subject to legislative regula¬ 
tion for the enforcement and protection of such rights 
and interests. 3 

10. The owners of ferries are common carriers, and 

liable as such for the carriage of the goods and persons 

which they receive upon their boats. They are bound 

to have their ferries furnished with suitable boats, and 

to be in readiness at all proper times to transport all 

_ * 

who apply for a passage. 4 They must have their flats 
so made and so guarded with railings that all drivers 
with horses and carriages may safely enter thereon ; 
and as soon as the carriage and horses are fairly on the 
drops or slips of the Hat, and during their transporta¬ 
tion, although driven by the owner or his servant, they 
are in the possession of the ferryman, and the owners 
of the ferry are answerable for the loss or injury of 
the same, unless occasioned by the fault of the driver. ’ 
If, however, the ferry be rented, the tenant, and not the 

1 3 Bl. Com. 219; 3 Wend. N. Y. 618; 3 Ala. 211; 16 B. Monr. Ky. 699. 

2 5 Dundy v. Chambers, 23 Ill. 369; 5 Com. Dig. 291; 12 East, 334 ; 3 Mo. 470; 
7 Ala. N. S. 55. 

s 10 Barb. N. Y. 223 ; 4 Zabr. N. J. 718; 11 B. Monr. Ky. 361. 

4 3 Mod. 289; 3 Penn. St. 342; 5 Mo. 36; 12 Ill. 344; 5 Cal. 360: Claypole V. 
McAllister, 20 Ill. 504; Fisher v. Clisbec, 12 Ill. 344. 

s 1 McCord S. C. 439; 14 Tex. 290; 28 Miss. 792; 4 Ohio St. 722 ; 7 Cush. 
Mass. 154. 


160 


TIIE HIGHWAY SYSTEM. 


[Sec. V. 


owner, is subject to these liabilities, because such tenant 
is jpro hac vice the owner. 1 

11. A bridge is a structure erected over a river, creek, 
stream, ditch, ravine, or other place, to facilitate the 
passage thereof, including by the term both arches and 
abutments. 2 

12. Bridges are either public or private. Public 
bridges are such as form a part of the highway, com¬ 
mon, according to their character as foot, horse or car¬ 
riage bridges, to the public generally, with or without 
toll, 3 though their use may be limited to particular oc¬ 
casions, as to seasons of Hood or frost. 4 They are estab¬ 
lished either by legislative authority or by dedication. 
By legislative authority : By the Great Charter 5 in 
England, no town or freeman can be compelled to make 
new bridges where never any were before but by act 
of parliament; under such act they may be erected and 
maintained by corporations chartered for the purpose, 
or by counties, or in whatever other mode may be pre¬ 
scribed. 6 In this country it is the practice to charter com¬ 
panies for the same purpose, with the right to take tolls 
for their reimbursement, 7 or to erect bridges at the state’s 
expense; or by general statutes to impose the duty of 
erection and maintenance upon towns, counties, or dis¬ 
tricts. 8 For their erection the state may take private 
property, upon making compensation, as in case of 
other highways ; 9 the rule of damages for land so taken 
being not its mere value for agricultural purposes, but 

1 1 Ala. 366; Sid. 160; 12 Ired. N. C. 1; 26 Barb. N. Y. 618; 22 Vt. 170; 
Claypole v. McAllister, 20 Ill. 514. See Washburn, Easements. 

8 3 Harr. N. J. 108; 15 Vt. 438; City of Chicago v. McGinn, 51 Ill. 266. 

3 2 East, 342. 

4 2 Maule & S. 262; 4 Campb. 189. 

G 9 Hen. Ill, c. 15. 

6 Woolrycli, Ways, 196. 

7 4 Pick. Mass. 34. 

« 12 N. Y. 52; 2 N. H. 513. 

9 Angell, Highways, § 81, et seq. 


Sec. V.] 


RIVERS AtfD FERRIES. 


161 


its value for a bridge site, minus the benefits derived 
to the owner from the erection. 1 The right to erect a 
bridge upon the land of another may also be acquired 
by mere parol license, which, when acted upon, be¬ 
comes irrevocable. 2 

13. The franchise of a toll-bridge or ferry may be 
taken, like other property, for a free bridge ; 3 and when 
vested in a town or other public corporation, may be 
so taken without "compensation. 4 A new bridge may 
be erected, under legislative authority, so near an older 
bridge or ferry as to impair or destroy its value, without 
compensation, unless the older franchise be protected 
by the terms of its grant : 5 but, unless authorized by 
statute, a new bridge so erected is unlawful, and may 
be enjoined as a nuisance. 6 And if the older franchise, 
vested in an individual or private corporation, be pro¬ 
tected, or be exclusive within given limits, by the 
terms of its grant, the erection of a new bridge or 
ferry, even under legislative authority, is unconstitu¬ 
tional, as an act impairing the obligations of contract. 7 

14. The entire expense of a bridge erected within a 
particular towm or district may be assessed upon the 
inhabitants of such town or district. 8 A state has the 
right to erect a bridge over a navigable river within its 
own limits ; 9 but, in exercising this right, care must 
be taken to interrupt navigation as little as possible, 10 
since for any unnecessary interruption the proprietors 


1 17 Ga. 30. 

2 11 N. H. 102; 14 Ga. 1; sec also 4 R. I. 47. 

3 6 How. 507; 23 Pick. Mass. 360. 

4 10 How. 511. 

5 11 Pet. 420; 7 Pick. Mass. 344; 6 Paige, Ch. N. Y. 554; 1 Bard. Ch. N. Y 
547; 3 Sandf. Ch. N. Y. 625. 

« 3 Wend. N. Y. 610; 3 Bl. Com. 218, 219; 11 Pet. 261. 

7 7 N. H. 35; 17 Conn. 40. 

8 23 Conn. 416. 

» 4 Pick. Mass. 460 ; 27 Penn. St. 303; 15 Wend. N. Y. 113. 

i° 43 Me. 198; 3 Hill, N. Y. 621; 4 Ind. 36. 


162 


THE HIGHWAY SYSTEM. 


[Sec. V. 


of the bridge will be liable in damages to the persons 
specially injured thereby, or to have the bridge abated 
as a nuisance, by injunction, though not by indictment, 
such bridge, although authorized by state laws, being 
in contravention of rights secured by acts of congress 
regulating commerce. 1 

15. The dedication of bridges depends upon the 
same principles as the dedication of highways, except 
that their acceptance will not be presumed from mere 
use, until they are proved to be of public utility. 2 

16. At common law, all public bridges are prima 
facie repairable by the inhabitants of the county, 
without distinction of foot, horse or carriage bridges, 
unless they can show that others are bound to repair 
particular bridges. 3 In this country, the common law 
not prevailing, the duty of repair is imposed by statute, 
generally, upon towns or counties; 4 except that bridges 
owned by corporations or individuals are repairable by 
their proprietors, 5 and that where the necessity for a 
bridge is created by the act of an individual or corpo¬ 
ration in cutting a canal, ditch or railway through a 
highway, it is the duty of the author of such necessity 
to. make and repair the bridge. 6 The parties charge¬ 
able must constantly keep the bridge in such repair as 
will make it safe and convenient for the service for 
which it is required. 7 If the parties chargeable with 
the duty of repairing neglect so to do, they are liable 


1 13 How. 518; 5 McLean C. C. 425. 

2 Angell, High. Ill; 18 Pick. Mass. 312; 23 Wend. N. Y. 4GG; 6 Mass. 458; 13 
East, 220. 

3 5 Burr. 2594; Bacon, Abr., Bridges; see Act March 22, 1872; 1 Gross 7G7, 
§§ 19, 20. 

4 9 Conn. 32; 12 N. Y. 52; 2 Ind. 147; 13 Pick. Mass. GO. 

5 4 Pick. Mass. 341; G Johns. N. Y. 90; 24 Conn. 491. 

e G Mass. 458; 23 Wend. N. Y. 4G6; 6 Hill, N. Y. 51G. 

7 G Johns. N. Y. 189; 8 Vt. 189; 23 Wend. N. Y. 254. 


Sec. V.] 


RIVERS AND PERRIES. 


163 


to indictment. 1 It has also been held that they may 
be compelled to repair by mandamus. 2 If a corpora¬ 
tion be charged with the duty by charter, they may he 
proceeded against by quo warranto for the forfeiture 
of their franchise, 3 or by action on the case for dam¬ 
ages in favor of any person specially injured by reason 
of their neglect. 4 * And in this country a similar action 
is given by statute, in many states, against public bodies 
chargeable with repair. 6 

17. The law of travel upon bridges is the same as 
upon highways, except when burdened by tolls. The 
payment of tolls can be lawfully enforced only at the 
gate or toll-house. 6 Where, by the charter of a bridge 
company, certain persons are exempted from payment, 
such exemption is to be liberally construed. 7 Bridges, 
when owned by individuals, are real estate, and also 
when owned by the public. 8 The materials of which 
they are formed belong to the parties who furnished 
them, subject to the public right of passage. 9 

18. A private bridge is one erected for the use of 
one or more private persons. Such a bridge will not 
be considered a public bridge although it may be occa¬ 
sionally used by the public. 10 The builder of a private 
bridge over a private way is not indictable for neglect 
to repair, though it be generally used by the public. 11 


1 Angell, Highvv. § 275; 1 Hill, N. Y. 50; 28 N. II. 195; 6 Hill, N. Y. 516. 

2 1 Hill, N. Y. 50; 14 B. Monr. Ky. 92; 3 Zabr. N. J. 214. But see 12 Ad. & 
E. 427; 3 Campb. 222. 

3 23 Wend. N. Y. 254. 

4 1 Spenc. N. J. 323; 6 Johns. N. Y. 90; 6 Vt. 496. 

6 14 Conn. 475; 10 N. II. 173; Angell, Highw. § 286 et seq. 

« 15 Me. 402. 

7 10 Johns. N. Y. 467; 7 Cow. N. Y. 33; 2 Cow. N. Y. 419. 

8 Coke, 2d Inst. 705. 

2 6 East, 154; 6 Serg. & R. Penn. 229. 

10 12 East, 203-4 ; 3 Sandf. Ch. N. Y. 625. 

11 7 Pick. Mass. 344 ; 11 Pet. 539; 6 Hill, N. Y. 516; 23 Wend. N. Y. 466; 4 
Johns. Ch. N. Y. 150. 


164 


THE HIGHWAY SYSTEM. 


[Sec VI. 


SECTION VI. 

RAILWAYS AND CANALS. 

1. A railway is a roatl graded, having rails of iron or other material. 

2. The right of way. 

3. The construction of the road; crossings at highways. 

4. Liabilities — injuries to stock, for the acts of agents, signals, manage¬ 
ment of trains. 

5. Railway stock, shares, preferred stock, bonds, etc. 

(i. The charter a grant, inviolable. 

7. A canal defined. 

8 . How constructed. 

9. Navigation of 

10. Tolls. 

1. A railway is a road graded and having rails of 
iron or other material for the wheels of carriages to run 
upon. Railways in their present form tirst began to 
he extensively constructed after the successful experi¬ 
ments in the use of locomotives in 1829. They had 
been in use in a rude form as early as 1676. These 
earlier railways were of limited extent, built by private 
persons on their own land, or upon the land of others, 
by special license, called way-leave. In their modern 
form, railways are usually (though not necessarily) 
owned by a corporation, which is authorized to exer¬ 
cise some important privileges, such as a right of emi¬ 
nent domain, etc. Within a few vears another class 

•j 

of railways, namely, those laid in the streets of towns 
and cities, have become very numerous, and many very 
interesting questions have arisen and are still arising 
in regard to them, most of which remain as yet unset¬ 
tled. 1 Most of the authorities in the books 2 are cases of 
steam railroads between which and the common street 
railroads important differences exist. The charter of 
a public railway requires the grant of the supreme 

1 See 14 Gray, Mass. (59; 4 Cush. Mass. 63; 18 Penn. St. 187; 2 Stockt. Ch. 
N. J. 352. 

,J See Illinois Dig. 844-856. 


Sec. VI.] 


RAILWAYS AO CANALS. 


165 


legislative authority of the state. 1 It is usually con¬ 
ferred upon a private corporation, but sometimes upon 
a public one, where the stock is owned and the com¬ 
pany controlled by the state. 2 Such charter, when 
conferred upon a private company or a natural per¬ 
son, as it may be, is irrevocable, and only subject to 
general legislative control, the same as other persons 
natural or artificial. 3 

2 . The right of way is generally obtained by the 
exercise of the right of eminent domain. This can 
only be done in strict conformity to the charter or 
grant. The company may enter upon lands for the 
purpose of making preliminary surveys, by legislative 
permission, without becoming trespassers, and without 
compensation. 4 The company acquire only a right of 
way, the fee remaining in the former owner. The 
company can take nothing from the soil, except for the 
purpose of construction. 5 The mode of estimating 
compensation to the land owners varies in different 
states. The more general mode is to award such a sum 
as will fairly compensate the actual loss, i. e., to give a 
sum of money which being added to the land remain¬ 
ing will make it as valuable as the whole would have 
been if none of it had been taken. 6 The company may 
lay their road across a highway, but not without mak¬ 
ing compensation to the owner of the fee for the addi¬ 
tional servitude thus imposed upon the land. 7 

3. The construction of the road must be within 


1 3 Engl. Railw. Cas. 65; 3 N. Y. 430. 

2 Redfield, Railw. § 17; 1 ORio St. 657; 4 Wheat. 668; 8 Watts, Penn. 316. 

a 4 Wheat. 668; 2 Kent, Com. 275 and notes; 11 La. Ann. 253 ; 2 Gray, Mass. 
1; 26 Penn. St. 287. 

4 9 Barb. N. Y. 449; Wright, Ohio, 132 and cases cited. 

5 2 Hill, N. Y. 342; 6 Mass. 90; 20 Barb. N. Y. 644; 16 Ill. 198; 11 N. Y. 308. 

« 13 Barb. N. Y. 171; Redfield, Railw. § 71, and cases cited. 

7 3 Hill, N. Y. 567; 25 Wend. N. Y. 462; 1 Exch. 723; 16 N. Y. 97: 9 Cush. 
Mass. 1. 


1G6 


THE HIGHWAY SYSTEM. 


[Sec. VI. 


the prescribed limits of the charter. The right of devi¬ 
ation secured by the charter or general laws is lost 
when the road is once located. 1 Distance, having 
reference either to the length of the line or to devia¬ 
tion, is to be measured in a straight line through a hor¬ 
izontal plane. 2 In crossing highways, public safety 
undoubtedly requires that it should not be at grade, or, 
if so, that the crossing should be protected by gates. 3 

4. The company are not liable for any injury to 
domestic animals straying upon their track, or while 
crossing it, in the highway, unless they have been 
guilty of some neglect in building fences or in the 
management of their trains. 4 * The company are not 
liable for the act of the contractor or sub-contractor, or 
their agents, except in doing precisely what is contem¬ 
plated in the contract. 6 Railway companies are liable 
for the acts of their agents and sub-agents within the 
range of their employment; and it has been the pur¬ 
pose of the courts to give such agents a large discre¬ 
tion, and hold the companies liable for all acts of their 
agents within the most extensive range of their charter 
powers. 6 But the company are not liable for the will¬ 
ful acts of their agents, out of the range of their em¬ 
ployment, unless directed by the company or subse¬ 
quently adopted by them. 7 The company are not liable 
for injuries to servants through the neglect of their fel¬ 
low-servants or defects in machinery, unless they were 
themselves in fault in employing incompetent servants 
or purchasing imperfect machinery for the road. 8 Rail- 

1 2 Ohio St. 235; Redlield, Railw. § 105; 2 Swan, Tenn. 282. 

2 27 Vt. 766; 36 Eng. L. & Eq. 114. 

3 20 Law Jour. 428. 

4 29 Me. 307; 6 Penn. St. 472 ; 4 Exch. 580. 

'■> 24 Barb. N. Y. 355; 4 Den. N. Y. 311; Redlield, Railw. § 168. 

6 14 How. 483 ; 27 Vt. 110; 7 Cush. Mass. 385. 

7 2 Harr. N. J. 514; Redlield, Railw. § 169 and notes. 

B 3 Mees. & W. Exch. 1; 4 Mete. Mass. 49; 6 Hill, N. Y. 592 ; 9 N. Y. 175. 


Sec. VI.] 


RAILWAYS AND CANALS. 


167 


way companies are liable for any injury accruing to 
the person or property of another through any want of 
reasonable care and prudence on the part of their agents 
or employes. This occurs from the omission of the 
requisite signals at road-crossings, and from want of 
care in other respects in crossing highways. 1 The con¬ 
duct of railway trains is so far matter of science and 
skill that it is proper to receive the testimony of experts 
in regard to it. 2 -Railway companies, like other cor¬ 
porations, cannot be bound by any contract of their 
agents beyond their charter power, or, as it is called, 
ultra vires, although assumed by their express direc¬ 
tion or consent. 3 

5. The large amount of capital invested in railway 
stock and bonds, or notes and mortgages, in this 
country, renders this subject one of very considerable 
importance. The forms of such investments are stock, 
preferred stock, and notes with coupons attached for 
the payment of the interest at stated times (generally 
once in six months), these being secured by mortgage 
of the road and all its appurtenances. The practice 
adopted by some of the railways in this country, of 
issuing preferred stock, or preference stock, as it is 
called in England, and of issuing stock at reduced 
prices after all has been sold at par which can be dis¬ 
posed of in the market, or of mortgaging the entire 
road two or three times over, giving successive priori¬ 
ties, has generally been regarded as impolitic, if not 
positively fraudulent. 4 

The rights and remedies of bond holders and mort¬ 
gagees, as well as the holders of preferred stock, depend 

1 2 Cush. Mass. 539; 10 id. 502; see also 28 Vt. 185; 18 Ga. -079; 8 Gray, 
Mass. 

a 23 Vt. 394, 395; 17 Ill. 509, 580. 

3 7 Eng. L. & Eq. 505; 10 id., 180 . 

* 27 Vt. 073, 092; Redfield, Railw. 503, § 234, and cases cited iu notes. 


168 


THE HIGHWAY SYSTEM. 


[Sec. VI. 


very much upon the forms of the contracts and the 
powers granted by the legislature to the company. The 
holders of preferred stock may, in a court of equity, 
compel the company to apply all their net earnings 
first to the payment of the stipulated dividend upon 
such stock, 1 and it is the familiar practice of the courts 
of equity in this country to allow the successive mort¬ 
gagees foreclosures upon all rights posterior to their 
own. How the property is to be controlled and man¬ 
aged thereafter is not yet well defined. The subject 
was a good deal discussed in an important case deter¬ 
mined by the supreme court of Vermont. 2 

It has been held that a trustee of money is not justi¬ 
fied in investing the same in railwav securities, it 
being of too precarious a character. 3 In Ellis v. 
Eden 4 it was held that “ stock in the foreign funds” 
included the American state stocks of Virginia, Mas¬ 
sachusetts, etc., but not Boston water scrip or bonds 
of the Pennsylvania railway. Bailway bonds, with 
coupons attached made payable to bearer, pass by 
delivery, the same as bills of exchange or bank 
bills, and have thus become a quasi currency. 5 Con¬ 
stitutional questions have reference chiefly to the 
inviolability of charter rights under the United States 
constitution, and rest mainly upon the doctrines and 
principles of the leading case of Dartmouth College 
v. Woodward. 6 The provision in the United States 
constitution referred to is that prohibiting the several 
states from passing “ any law impairing the obligation 
of contracts.” 

1 30 Loncl. Law Times, 141. See also 2 Stockt. Ch. N. .T. 171. 

« 31 Vt. 

a 10 Eng. L. & Eq. 123; 21 N. H. 352. 

4 30 Loud. Law Times, 601. 

5 1 Stockt. Ch. N. J. 667; 13 N. Y. 599. See also 11 Paige, Ch. N. Y. 634; 3 
Hill, N. Y. 159; Redfield, Kailw. § 239. 

* 4 Wheat. 518. 


Se^. VI.] 


RAILWAYS AND CANALS. 


169 


Railroads in Illinois. —Every railroad corporation organ¬ 
ized or doing business in this state, under tlie laws or authority 
thereof, shall have and maintain a public office or place in this 
state for the transaction of its business, where transfers of stock 
shall be made, and in which shall be kept, for public inspection, 
books, in which shall be recorded the amount of capital stock 
subscribed, and by whom ; the names of the owners of its stock, 
and the amounts owned by them respectively ; the amount of 
stock paid in and by whom; the transfers of said stock ; the 
amount of its assets and liabilities, and the names and places of 
residence of its officers. The directors of every railroad corpora¬ 
tion shall, annually, make a report, under oath, to the auditor of 
public accounts, or some officer to be designated by law, of all 
their acts and doings, which report shall include such matters 
relating to railroads as may be prescribed by law. And the gen¬ 
eral assembly shall pass laws enforcing by suitable penalties the 
provisions of this section. § 9, Art. XI, Const. Ill. 1870. 

The rolling stock and all other movable property belonging to 
any railroad company or corporation in this state, shall be con¬ 
sidered personal property, and shall be liable to execution and 
sale in the same manner as the personal property of individuals, 
and the general assembly shall pass no law exempting any such 
property from execution and sale. § 10, id. 

No railroad corporation shall consolidate its stock, property or 
franchises with any other railroad corporation owning a parallel 
or competing line; and in no case shall any consolidation take 
place except upon public notice given, of at least sixty days, to 
all stockholders, in such manner as may be provided by law. A 
majority of the directors of any railroad corporation now incor¬ 
porated or hereafter to be incorporated by the laws of this state 
shall be citizens and residents of this state. § 10, id. 

Railways heretofore constructed, or that may hereafter be con¬ 
structed in this state, are hereby declared public highways, and 
shall be free to all persons for the transportation of their persons 
and property thereon, under such regulations as may be prescribed 
by law. And the general assembly shall, from time to time, pass 
laws establishing reasonable maximum rates of charges for the 
transportation of passengers and freight on the different railroads 
in this state. § 12, id. 

No railroad corporation shall issue any stock or bonds, except 
for money, labor or property, actually received, and applied to the 
purposes for which such corporation was created; and all stock 
dividends and other fictitious increase of the capital stock or 


8 


no 


THE HIGHWAY SYSTEM. 


[Sec. VI. 


indebtedness of any such corporation shall be void. The capital 
stock of no railroad corporation shall be increased for any purpose, 
except upon giving sixty days’ public notice, in such manner as 
may be provided by law. § 13, id. 

The exercise of the power and the right of eminent domain 
shall never be so construed or abridged as to prevent the taking, 
by the general assembly, of the property and franchises of incor¬ 
porated companies already organized, and subjecting them to the 
public necessity the same as of individuals. The right of trial 
by jury shall be held inviolate in all trials of claims for compen¬ 
sation, when, in the exercise of the said right of eminent domain, 
any incorporated company shall be interested either for or against 
the exercise of said right. § 14, id. ; R. R. Co. v. Black, 58 Ill. 33. 

The general assembly shall pass laws to correct abuses and 
prevent unjust discrimination and extortion in the rates of freight 
and passenger tariffs on the different railroads in this state, and 
enforce such laws by adequate penalties, to the extent, if neces¬ 
sary for that purpose, of forfeiture of their property and fran¬ 
chises. § 15, id. 

Illinois Central Railroad. — No contract, obligation or 
liability whatever, of the Illinois Central Railroad Company, to 
pay any money into the state treasury, nor any lien of the state 
upon or right to tax property of said company, in accordance with 
the provisions of the charter of said company, approved February 
10, in the year of our Lord 1851, shall ever be released, suspended, 
modified, altered, remitted, or in any manner diminished or 
impaired by legislative or other authority; and all moneys 
derived from said company, after the payment of the state debt, 
shall be appropriated and set apart for the payment of the ordi¬ 
nary expenses of the state government, and for no other purposes 
whatever. 

No county, city, town, township, or other municipality, shall 
ever become subscriber to the capital stock of any railroad 
or private corporation, or make donation to or loan its credit in 
aid of such corporation: Provided, however , that the adoption of 
this article shall not be construed as affecting the right of any 
municipality to make such subscriptions where the same have 
been authorized, under existing laws, by a vote of the people of 
such municipalities prior to such adoption. 

'Flie Illinois and Michigan Canal shall never be sold or leased 
until the specific proposition for the sale or lease thereof shall 
first have been submitted to a vote of the people of the state, at 
a general election, and have been approved by a majority of all 
the votes polled at such election. The general assembly shall 


Sec. VI.] 


RAILWAYS AND CANALS. 


171 


never loan the credit of the state, or make appropriations from 
the treasury thereof, in aid of railroads or canals: Provided, that 
any surplus earnings of any canal may be appropriated for its 
enlargement or extension. 


6. A corporate charter is regarded as a legislative 
grant of certain franchises and immunities involving 
pecuniary value, and, consequently, not revocable, or 
subject to legislative control in any other sense than 
as all rights of property are liable to be affected by 
general legislation. 1 The essential franchise of a pri¬ 
vate corporation, being private property, cannot be 
taken for public use without adequate compensation. 2 
But to be thus inviolable it is essential that the fran¬ 
chises in question shall be such as are indispensable to 
the existence and just operation of the corporation, or 
else that they be expressly secured to the corporation 
in its charter. 3 These exclusive grants are to he 
strictly construed in favor of the corporation, and 
liberally expounded in favor of public rights and 
interests. 4 It makes no difference in regard to the 
rights of the corporation that it may have received 
large grants of land or other property from the state 
or sovereignty conferring the charter. Unless the 
stock is owned by the state, or the appointment and 
control of the principal officers are retained by the 


1 4 Wheat. 518; 27 Vt. 140; Redfield, Railw. § 231. 

Grave questions arise out of the assertion of the right by the state to regu¬ 
late fares or tolls on railways; the railway companies insisting that such a 
regulation is in violation of their vested rights, and directly impairing the 
obligation of the contract involved in their charters. In this, we apprehend, 
they are mistaken. The regulation of the rights and privileges granted is 
one thing, their alteration or the impairing the obligation of a contract quite 
another. A railway company is, like a natural person, amenable to the laws. 
Police regulations in all our cities are but assertions of the sovereign power 
of the state in the same direction. No one doubts the power or validity of 
ordinances regulating the running of hackney coaches. The public good 
requires it. The regulations of tolls on turnpike roads and toll-bridges are 
forcible illustrations of the exercise of the regulating or police powers of 
the state. 2 15 Vt. 745; 6 How. 507. 

3 11 Pet. 420. 4 13 How. 71; 1 La. Ann. 253. 


172 


THE HIGHWAY SYSTEM. 


[SPA’. VI. 


state, so as to create it a public corporation, its essen¬ 
tial franchises are inviolable to the same extent as 
other private rights of a pecuniary character, and its 
functions are equally independent of legislative control 
as are those of any natural person. 1 See, also, cases in 
the United States supreme court, maintaining the same 
principle. 2 

7. A canal is an artificial cut or trench in the earth, 
for conducting and confining water to be used for 
transportation. 

8. Public canals originate under statutes and char¬ 
ters enacted to authorize their construction and to 
protect and regulate their use. They are in this coun¬ 
try constructed and managed either by the state itself, 
acting through the agency of commissioners, or by 
companies incorporated for the purpose. 3 These com¬ 
missioners and companies are armed with authority 
to appropriate private property for the construction of 
their canals, in exercising which they are bound to a 
strict compliance with the statutes by which it is con¬ 
ferred. Where private property is thus taken, it must 
be paid for in gold and silver, i. e. legal tender. 4 Such 
payment need not precede or be cotemporaneous with 
the taking; 5 though, if postponed, the proprietor of 
the land taken is entitled to interest. 6 After the appro¬ 
priation of land for a canal, duly made under statute 
authority, though the title remains in the original 
owner until he is paid therefor, he cannot sustain an 
action against the party taking the same for an injury 
thereto. 7 But if there be a deviation from the statute 

i 14 Miss. 509; 6 Penn. St. 86; 9 Wend. N. Y. 351; 4 Barb. N. Y. 64. 

‘ 2 18 How. 331, 380, 384; Redfield, Raihv. § 232. 

3 See Illinois Dig., Canal Lands and Canal Laws. 

4 8 Blaekf. Ind. 246. 

8 20 Johns. N. Y. 735; 4 Zabr. N. J. 587. 

» 5 Den. N. Y. 401; 1 Md. Ch. Dec. 248. 

7 19 Barb. N. Y. 263, 370; 4 Wend. N. Y. 647: 20 Johns. N. Y. 735; 7 Johns. 
Ch. N. Y. 314; 19 Penn. St. 456. 


I 


Sec. VI.j RAILWAYS AxNl) CANALS. 173 

authority, the statute is no protection against suits 
by persons injured by such deviation. 1 Appraisers 
appointed to assess damages for land taken have no 
authority to entertain claims not presented in the 
mode and within the time prescribed by statute. 2 But 
though a special remedy for damages be given by a 
statute authorizing the construction of a canal, the 
party injured thereby is not barred of his common- 
law action. 3 The legislature have the exclusive power 
to determine when land may be taken for a canal or 
other public use, and the courts cannot review their 
determination in that respect. 4 5 

9. In navigating canals, it is the duty of the canal- 
boats to exercise due care in avoiding collisions, and 
in affording each other mutual accommodation ; and 
for any injury resulting from the neglect of such care 
the proprietors of the boats are liable in damages. 6 
The proprietors of the canal will be liable for any 
injury to canal-boats occasioned by a neglect on their 
part to keep the canal in proper repair and free from 
obstructions. 6 

10. In regard to the right of the proprietors of 
canals to tolls, the rule is that they are only entitled to 
take them as authorized by statute, and that any ambi¬ 
guity in the terms of the statute must operate in favor of 
the public. 7 For other cases relating to various points 
arising under statutes in regard to canals see the reports. 8 


1 4 Den. N. Y. 35ft; 26 Wend. N. Y. 485; Coop. Ch. 77. 

2 9 Barb. N. Y. 496; 11 N. Y. 314. 

3 24 Barb. N. Y. 159; 5 Cow. N. Y. 163; 16 Conn. 98. See to the contrary, 12 
Mass. 466; 1 N. H. 339. 

* 9 Barb. N. Y. 350; 8 Blackf. Ind. 266. 

5 19 Wend. N. Y. 399; 1 Penn. St. 44. 

7 Mass. 189; 7 Ind. 462 ; 20 Barb. N. Y. 620; 4 Kill. N. Y. 630. 

7 2 Barnew. & Ad. 792; 2 id. 58; 9 How. 172; 6 Cow. N. Y. 567; 21 Penn. 
St. 131. 

8 8 Blackf. Ind. 352; 12 Mass. 403; 11 Penn. 202; 1 Gill, Md, 222; 17 Barb. N. 
Y. 193; 19 id. 657; 25 Wend. N. Y. 692, 


174 


THE HIGHWAY SYSTEM. 


[Sec. Vll 


SECTION VII. 

TURNPIKES, TOLL BRIDGES AND PLANK ROADS. 

1. A turnpike is a gate, but generally a highway over which the public have 
the right to travel upon payment of toll. 

2. The law of the road. 

3. Toll bridges. 

4. Plank roads. 

1. A turnpike is a gate set across a road, to stop 
travelers and carriages until toll is paid for passage 
thereon. In the United Slates, turnpike roads are 
often called turnpikes. A turnpike road is a road or 
highway over which the public have the right to travel 
upon payment of toll, and on which the parties entitled 
to such toll have the right to erect gates and bars to in¬ 
sure its payment. 1 Turnpike roads are usually made by 
corporations under legislative authority; and, the roads 
being deemed a public use, such corporations are 
usually armed with the power to take private property 
for their construction, upon making just compensation. 
In the execution of this power they are bound to a strict 
compliance with the terms upon which it is given, and 
are subject to the rules which govern the exercise of 
the right of eminent domain under the constitutions of 
the several states. 2 In estimating the damages to be 
awarded for lands taken for a turnpike road, the rule 
is to allow the value of the land and its improvements, 
deducting therefrom the benefits from the road and the 
additional value given by it to the remaining property. 3 
The legislature may authorize the conversion of an 
existing highway into a turnpike road, 4 without any 
pecuniary equivalent to the owner of the fee, such road 
still remaining a public highway. 6 Under the power 

1 6 Mees. & W. Exch. 428; 16 Pick. Mass. 175. 

2 1 Dan. Ky. 81; 6 Ohio, 15; 10 id. 396; 25 Penn. St. 229. 

3 20 Penn. St. 91, 95, 97. 

4 11 Vt. 198; 18 Conn. 32; 3 Barb. N, Y, 459 ; 4 Hnmphr. Tenn. 467, 

6 2 Ohio St. 419, 


SEC. VII.] TURNPIKES, BRIDGES AND ROADS. 


175 


to take land for this purpose, the corporation may take 
land for a toll-house and a cellar under it and a well 
for the use of the family of the toll-keeper. 1 A turn¬ 
pike road being a highway, any obstruction placed 
thereon renders the author of it liable as for a public 
nuisance. 2 

2. Turnpike companies, so long as they continue to 

take toll, are bound to use ordinary care in keeping 

their roads in suitable repair, and for any neglect of 

this duty are liable to an action on the case for the 
«/ 

damages to any person specially injured thereby, 3 and 
to an indictment on the part of the public. 4 * The law 
of travel upon turnpike roads is the same as upon 
ordinary roads, except as regards the payment of tolls. 
If there be any ambiguity in the authority granted 
to a turnpike company to take toll, it will be construed 
rather in favor of the public than of the grantee. 6 
Travelers are liable for toll though they avoid the 
gates; 6 but not for the travel between the gates with¬ 
out passing the same. 7 Exemptions from toll are 
construed most liberally in favor of the community. 8 
A road or turnpike laid out by an individual or by 
the select men of the town to facilitate the evasion 
of toll by travelers upon a turnpike road will entitle 
the turnpike company to an action on the case for 
damages, or to an injunction ordering the same to be 
closed. 9 And such company is entitled to compensa- 


1 9 Pick. Mass. 109. 

10 Pick. Mass. 175; 8 Wend. N. Y. 555. 

3- H Johns. N. Y. 90; 7 Conn. 86; 11 Wend. N. Y. 597 ; 6 N. H. 147; 10 Pick. 
Mass. 35; 5 Ind. 286; 11 Vt. 531. 

•i 11 Wend. N. Y. 597; 1 Harr. N. J. 222; 9 Barb. N. Y. 161; 2 Gray, Maes. 58. 
5 2 Barnew. & Ad. 792; 2 Mann. & G. 134. 

2 Root, Conn. 524; 10 Vt. 197. 

7 2 B. Monr. Ky. 30; 10 Ired. N. C. 30; 11 Vt. 381. 

s Angell, Highw. § 359. 

» 10 N. H. 133; 13 id. 28: 18 Conn. 451; 1 Johns. Ch. N. Y. 315; 12 Barb. N. 

Y. 553; and see 4 Johns. Ch. N. Y. 150; 5 id. 10R 


170 


THE HIGHWAY SYSTEM. 


[Sec. VIII. 


tion for the injury to tlieir franchise by a highway 
which intersects their road at two distinct points, and 
thereby enables travelers to evade the payment of tolls, 
though such highway be regularly established by the 
proper authorities to meet the necessities of public 
travel. 1 If a turnpike company abuses its powers, or 
tails to comply with the terms of its charter, it is liable 
to be proceeded against by quo warranto for the for¬ 
feiture of its franchise. 2 3 

3. Toll bridges are frequently constructed by private 
corporations, and the tolls collected and enforced fur¬ 
nish the means of their support and maintenance. 8 

4. Plank roads are private corporations, and the law 
of highways pertaining to them and toll bridges is 
quite the same as in the case of turnpike roads. 4 


SECTION VIII. 

PRIVATE WAYS. 

1. A way is a passage, street or road. 

2. A right of way, by prescription, by necessity, by reservation, by cus¬ 
tom, in gross or appendant. 

3. Twenty years’ occupation adverse, a bar to the right. 

4. The statute purporting to authorize the laying out of private ways 
against the objections of owners, unconstitutional. 

1. A way is a passage, street or road. A right of 
way is the privilege which an individual, or a partic¬ 
ular description of individuals, as, the inhabitants of a 
village or the owners or occupiers of certain farms, have 
of going over another’s ground. It is an incorporeal 
hereditament of a real nature, entirely different from a 
common highway. 5 

1 1 Barb. N. Y. 286; but see 2 N. H. 11)0; 10 id. 133; 12 La. Ann. 649. 

a 23 Wend. N. Y. 193, 223, 254; 1 Zabr. N. J. 9; 2 Swann, Tenn. 282. 

3 See Bridges, Ferries, supra ; 1 Gross, 293-298. 

4 See 1 Gross, 495-507. 

5 Cruise, Dig. tit. xxiv, s. 1. 



Sec. VIII.] 


PRIVATE WAYS. 


177 


2. A right of way may arise by prescription and im¬ 
memorial usage, or by an uninterrupted enjoyment for 
twenty years under a claim of right. 1 By grant, as 
where the owner grants to another the liberty of pass¬ 
ing over his land. 2 If the grant be of a freehold right, 
it must be by deed. 3 By necessity , as where a man 
purchases land accessible only over land of the vendor, 
or sells reserving land accessible only over land of the 
vendee, he shall have a way of necessity over the land 
which gives access to his purchase or reservation. 4 The 
necessity must be absolute, not a mere convenience, 5 * 
and when it ceases the way ceases with it. 0 By reserva¬ 
tion ., expressly made in the grant of the land over which 
it is claimed. 7 By custom , as where navigators have a 
right of this nature to tow along the banks of navigable 
rivers with horses. 8 By acts of legislature ; though a 
private way cannot be so laid out without the consent 
of the owner of the land over which it is to pass. 9 A 
right of way may be either a right in gross, which is a 
purely personal right incommunicable to another, or a 
right appendant or annexed to an estate, and which may 
pass by assignment with the estate to which it is 
appurtenant. 10 A right of way appurtenant to all and 
every part of the land, and if such land be divided and 
conveyed in separate parcels, a right of way thereby 
passes to each of the grantees. 11 

3. Twenty years’ occupation of land, adverse to a 


1 4 Barb. N. Y. (30; Coke, Litt. 113; 8 Pick. Mass. 504. 

2 i Ld. Raym. 75; 19 Pick. Mass. 250; Crabb. Real Prop. § 3(36. 

3 5 Barncw. & C. 221; 4 R. I. 47. 

* 22 Penn. St. 333; 19 Wend. N. Y. 507; 15 Conn. 39. 

» 2 McCord, S. C. 445; 24 Pick. Mass. 102. 

e 1 Barb. Ch. N. Y. 353. 

t 10 Mass. 183. 

* 3 Terra, 253. 

» 4 Hill, N. Y. 47, 140; 15 Conn. 39, 83. 

3 Kent, Cora. 420; 1 Watts, Penn. 35; 19 Pick. Mass. 250. 

n i Cush. Mass. 285; 1 Scrg. & R. Penn. 229. 


178 


THE HIGHWAY SYSTEM. 


[Sec. VIII. 


right of way and inconsistent therewith, bars the right. 1 2 
Lord Coke, adopting the civil law, says there are three 
kinds of ways: a footway called iter j a footway and 
horseway called actus ; a cartway which contains the 
other two, called via? To which may be added a 
driftway , a road over which cattle are driven. 3 
Where a party purchased a right of way, and received 
a written instrument to evidence the fact, and both 
sides of the way were fenced, and it was in constant 
use by him, for the purposes of a way, although the 
writing was not recorded, these facts constitute such 
notice to a subsequent purchaser as to prevent him 
from holding the right of way ; 4 and in such case equity 
has jurisdiction, as the injured party has no adequate 
remedy at law, and will perpetually enjoin such pur¬ 
chaser from obstructing the right of way. 

4. The statute which in terms authorizes the estab¬ 
lishment of private roads by assessing damages is un¬ 
constitutional. 5 

1 IK Barb. N. Y. 184. 

2 Coke, Lif t. 56 a. 

^ 1 Taunt. 279; Dig. 8, 8; 1 Brown, Civ. Law, 177. 

* McCann r. Day, 57 Ill. 101. 

R Nesbitt v. Trumbo, 39 Ill. 110; Crear v. Crossby, 40 111. 175. 


INDEX. 


The figures at the right indicate the page, at the left the paragraph. 


ABANDONMENT OF HIGHWAY_ 

on, soil reverts to owner... 

ABATEMENT OF NUISANCE.... 

obstructions, (P. 0.)*.. 

obstructions, (T. 0.)* (See Fence) .. 

ACCEPTANCE OF DAMAGES 

by owner, a waiver of all further question . 

ACCEPTANCE of highway 

by the public, user the proper proof of_ 

ACCEPTANCE OF OFFICE (P. O.) 

by supervisor, return of, by sheriff_ 

ACCIDENTS.... 

ACCOMMODATION * 

by travelers of each to the other_ 

ACCOUNTS 

of highway officers (see Supervisor) _ 

overseers, under township organization_ 

commissioners.... 


13,14,148 
4 


40 


34,110,117 

_ 3 

44 

.... 0 

.0, 8,01,02 

.... 54,55 

_ 92-95 

_72,73 


ACQUIESCENCE 

of owner in public use of his property... 2 

ACQUISITION OF HIGHWAY, 

the modes of, pointed out.....15,01,102, 103 


ACTION 

for fines etc. (see Suits : Fines and Penalties) _52, 80-88 

ACT OF APRIL 10, 1872, (Roads and Bridges) 

repealed_____00,150 

tax collected under, how to be expended...00, 150 

ACT OF APRIL 18, 1873 ___ 7-00 

primary organization roads and bridges under_ 7-00 

emergent....... 00 

ACT OF APRIL 11, 1873._____ 7 

roads and bridges under township organization_01-151 

emergent _ r ...... 151 


* The abbreviations P. O. and T. O. denote counties not under township 
organization and counties under township organization respectively. 



























180 


INDEX. 


AFFAIRS, COUNTY, (P. O.) 

jurisdiction of the county court over . _-- 41 

Cook county, see ^ 67, art. 10, Const. 1870. 

AFFIDAVIT (P. O.) 

of posting notice of application for a road- 18 

of service and posting notice for a cartway or pri¬ 
vate road-----.— 30 

of the supervisor to the list (see Township Organization) 53, 54 

ALLEYS, 

streets and (see Streets) ---151-154 

ALLOWANCE (P. O.) 

may be made by the supervisor for amount paid for 

persons appointed to warn in the hands_ 54 

ALTERING A ROAD__13,102 

(see Township Organization) ---.102-140 

AMENDMENTS: (P. O.) 

record may be amended in suits brought for road labor, 

road tax, etc_____ _ 53 

ANIMUS DED1GANDI 

must appear...... 3 

ANNUAL REPORT, (P. O.) 

supervisors’____._55,56 

commissioners and overseers’ (T. O.). _.72, 73, 93, 94 

(see Township Organization : Accounts) ..54, 55 

APPEAL, (P. 0.) 

by a county, may be made.. c .__ 33 

from the award of the jury to the circuit court, whose 

decision shall be final___36 

from the county commissioners’ report..__ 26 

in' suits brought for road tax..... 52 

T. 0___-___ 

from the verdict of the jury to three supervisors_132-135 

three supervisors to be summoned to hear appeal_ 135 

procedure prescribed .......139-144 

APPLICATION (P. O.) 

for a new road to be signed by thirty-five voters of the 

county residing within five miles of proposed route. 13 

the hearing and procedure__ 16-24 

(T. 0.)- .102-151 

at least twelve freeholders of the town to apply_102-108 

APPLICATIONS (P. O.) 

to be made to the board of county commissioners for 

matters concerning location or vacation of roads.... 16 
to the commissioners of highways (P. 0.)_103,104,105 

APPOINTMENT 

of viewers. lfj 

order appointing_ 1<J 

ASSESSMENT OF DAMAGES 

by a jury, how arrived at (P. O.).... 35,36 

(T.-O.). 119-123 






























INDEX. 


181 


AUTHORITY, LEGISLATIVE, 
highways may be created by 


1 


BOARD, 

the, of county commissioners.____59,60 

53. Jurisdiction over and concerning state roads con¬ 
ferred on county courts; hut after their election the 
board of county commissioners (Const. 1870, ^ 6, art. 

10) is to accede to such jurisdiction.. 59 

54. Railroad companies to be notified...59,60 

55. Notices to be served on nearest station agents. 60 

56. Money collected under the highway act of 1872 

to be expended for highways__ 60 

57. The act of April 10, 1872, and former conflicting 

acts, repealed_____ 60 

58. Emergent. T ____60 

to supersede the county court in county matters_ 59 


BOARD OF SUPERVISORS, 

list to he laid before the, when and how .. 95 

to cause levy and collection of tax.... 95 


BRIDGE REGULATIONS, 
driving faster than a walk 


BRIDGES ___ 

are but streets or highways over water 

to be put in good repair_ 

(T. O.)...... 

toll.... 


40,41,100 

..159-163 

14 

57 

..143,146 
... 176 


CALLING OUT THE HANDS.. 46 

warning (see Notice) ..... 47 

CANALS, 

see railways and....164-173 

CARRIAGE 

defined .... 11, G4 


CARRIERS, 

liabilities of, for injuries on the road ....10,11,03 


CARTWAY 

or private road, how to be acquired prescribed, 28,130,131,178 


CHANGE 

and relocation, application may 

CIRCUIT COURT, 

decision to be final on appeal .. 
see pages... 

CLAIM 

for damages..- 

must be promptly and properly 
when to be made___ 


be made for_31,102-105 

_ 36 

__ 102-151 


__ 24 

made, or it will be void, 36 
...19,118,119,120 


CLERK 

to notify appointed supervisors through the sheriff- 

form of notice, etc---- 

to make for the grand jury a list of names of the super¬ 
visors .... .. 


43 

44 

58 






























182 


INDEX. 


CLERK, TOWN, 

to furnish lists.... . <4 

plat, etc. ( see Notice) .. ... 96 

COACHES, 

hackney.....11,04 

COLLISION__-.- -C, 11 > 01,62 

COMMISSIONERS, 

the board of county, to supersede the county court in 

county matters....... ;) 9 

order of, essential to establishment of a new road, 

under the act of 1835 ___ 10 

COMMISSIONERS OF HIGHWAYS, 

their powers and duties...—.05-79 

COMMON CARRIERS, 

liability of. .....10,11,03 

COMMUTATION, 

labor and______49, 84, 85 

COMPANY, RAILROAD, 

notices to be served on, when and how.... ,0 

COMPENSATION, 

private property shall not be taken for public use 

without just....— 2 

compensation for private property must invariably 

be made_______ 15 

to be determined by a jury... 2 

of sheriffs, county clerks, viewers, surveyors, and 

supervisors to be fair and reasonable ... 59 

{see Primary Organization ; Township Organization) 

CONTRACTS 

may be made by the supervisors (of roads) (P. O.)_56, 57 

overseers’(T.O.)..:.... 81 

CONTRIBUTIVE NEGLIGENCE__..11,63, 64 

CORPORATE 

name of the county to be used in suits (P. O.)_ 53 

name of the town to be used in, under T. O..86-89 

COUNTY, 

division of the, into road districts (P. O.)__ 42 

division of, into road districts (P. O.)____ 67 

COUNTY CLERK, 

his notice to the supervisors ; sheriff to serve it; the 

return__ 43 

to make a list of the supervisors for each grand jury. 58 

(BOUNTY CLERKS, 

their compensation under road law (P. O.).. 59 

certificate of, to treasurer of commissioners of high¬ 
ways - 150 

COUNTY COMMISSIONERS (P. O.) 

the board of, to supersede “ the county court ”.. _ 59 

order essential to establishment of a new road under 
the act of 1835_ 16 



























INDEX. 


183 


COUNTY COURT, (P. O.) 

the, or the board of county commissioners (art. 10, § G, 

Const. 1870)—jurisdiction; supervisors (of roads).. 41-51 

28. Board of county commissioners, vested with the 

general superintendence over public roads, may 
cause new roads to be located, and. to alter or vacate 
roads within their respective counties_ 41,42 

29. At the December term annually to divide their 
respective counties into road districts, and appoint 
a supervisor for each road district; first supervisors, 
however, to be immediately appointed, and districts 

to be made_42,4:5 

30. Notice of their appointment to be served by the 
sheriff on the several supervisors, accepting which 
they are each to return a poll list within fifteen 
days to the county clerk; sheriff’s return; fines for 
nonfeasance and misfeasance of the county clerk 

and sheriff prescribed_ 43,44 

31. Failure of supervisor to accept, mulcts him in a 
five dollar fine, for the benefit of roads; the county 
court may excuse him, and create vacancies, and 
shall fill them promptly at the term when they 

. occur___ 45 

32. Duties of the supervisor detailed and prescribed; 

to maintain and properly keep roads and bridges 
in his district in good repair, together with guide 
boards, etc_______ 45 

33. To remove obstructions, repair and rebuild roads 

and bridges, and call out the persons owing road 
labor for such purpose to perform it; if the expense 
will not exceed ten dollars, may hire ; if it will, then 
he is to report for instructions to the board of county 
commissioners__4G, 47 

34. The county court, at the December term in each 
year, to prescribe road labor for the able-bodied 
males between the ages of twenty-one and fifty, to 

be certified to each supervisor_ 47 

35. Road tax not exceeding twenty cents on each one 

hundred dollars of taxable property within the 
county may be assessed by the county court annually, 
at the September term; tax book; but the tax sys¬ 
tem as a whole may be adopted____ 47,48 

30. The labor system, modus operandi, tax list to be 
made by the clerk and delivered through the sheriff 
to the supervisor of every road district, under pre¬ 
scribed penalties for failure, etc... 48 

37. Supervisor to give three days’ notice; work, how 

performed, etc--- 49 

38. The tax list; notice to be given; work, how per¬ 
formed, etc.....— 50 

39. Incorporated cities, towns and villages ; the charter 

to govern in the matter of highway labor and taxes.. 51 

jurisdiction full and ample over state and other roads. 59 

COUNTY SURVEYOR 

qualified ex-officio to act as road viewer (see Survey).. 


35 














184 


INDEX 


CREATION OF HIGHWAYS 

by legislative authority ....-.. 1 

by dedication_ — 2 

by necessity__ — 3 

(see Primary Organization; Township Organization.) 

DAMAGES, 

claim for____.._ 24 

adj ustment_____._ 37 

agreement for___ 19,20 

release of__19,20 

assessment of by a jury, how arrived at._ 30 

verdict of a jury assessing___.. 33 

must be paid before road can be worked, he. opened.. 3 

resulting from collision______11, 01, 02 

for obstruction of highway_____ 0 

for drainage etc___ 56,57 

(see Obstruction; Compensation.) 

DAYS’ LABOR FIXED, 

order for the purpose____47, 74, 7*5 

DEBT, 

action of, prescribed for recovery of penalty for ob¬ 
structing a highway_____39, 97,98 

DECEMBER, 

supervisor to collect and have labor performed by first 

Monday of ( see October) ........ 53 

DECLARATION 

of owner of intention to dedicate___ 2 

DEDICATION 

by making plat.... 39 

for a footway, horseway or driftway.. 3 

ingredients of the evidence of (see Highway) .. 2 

DEFINITION 

of carriage...... 11,64 

of highway__ ____1,12,61 

DEPOSIT 

of expenses of a view by applicants for a new road_ 14 

DESCRIPTION 

of route of a new road___ 27 

DISTRICTS, (P. O.) 

order dividing a county into.... 42 

road, to be made in 1873 at June term of county court. 42 
road, when to be made in June, 1873, first at the De¬ 
cember term afterwards... 42 

(T. 0.) 

commissioners of highways to divide their town into,. 67 

DITCHES, 

sluices, drains and water-courses to be made ..56,57,100-102 
DIVISION OF THE COUNTY 

into road districts at the December session.42, 67 

DOMAIN, 

eminent, the right of... 154 




























TNPEX. 


185 


DRAINS, 

ditches, sluices and water-courses to be made. .56,57,100-102 
DRIVERS 

addicted to drunkenness not to be employed__ 9, 62 


DRIVING 

fast, prohibited__*... 10,63 

furious, an indictable offense...... 6 

DRUNKENNESS, 

driver addicted to, not to be tolerated.. 9, 63 


DUE CARE.....61,62 

EASEMENT, 

a highway is but an___ 3 

EJECTMENT 

will lie by owner of the fee for encroachments on 

highway..... 4 

EMERGENCY 

for the act of April 18, 1873.___ 60 

for the act of April 11, 1873___ 151 

EMINENT DOMAIN, 

the right of....... 154 

Equestrians 

not bound to turn to the right___ 6 

EQUITABLE ESTOPPEL, 

acts and declarations relative to dedication_ 3 


ESTOPPEL, 

if damages be not promptly and aptly claimed on 

notice, will ensue_ 36,37 

party owning land and permitting public use thereof 

for a highway may estop himself from reclaiming it 3 

EVIDENCE 

of dedication__—---- 2 

weight of, in causes for obstructing highway.... 39 

EXEMPTIONS__ 51 

EXPENSES OF VIEW 

to be deposited.. 14 

FAST DRIVING 

an indictable offense at common law... 6 

prohibited_ 10,63 


FEE OF HIGHWAY 

is usually in the owners of adjoining property.. 3 

FENCE, 

any person may remove one from a highway.. 39 

supervisor’s notice to remove-- 38 

commissioner’s notice....147, 148 

FERRIES, RIVERS AND..... .155-163 


FINE 

against supervisor for nonfeasance from $5 to $50... — 58 

for plowing up highway or turning a current of water 

into it..------- 40 

supervisor liable for, in case he lends plows^scrapers, etc. 58 

8* 




























186 


INDEX. 


FINES AND PENALTIES (see Suits) .. 85-89 

FOOT PASSENGERS 

not bound to turn to the right__— 6 

FOOTWAY, 

there may be a dedication for---- 3 


FREEHOLDER 

may apply, when, and for a cart road, (P. O.)- 28 

private ways ( see Township Organization: Private 

Ways ....___...130, 131 

FREEHOLDERS, 

twelve at least of the town, to apply by petition to 

open, alter or vacate a road (T. O.)...103-105 

FRUIT TREES 

growing on highway belong to the owner of the fee- 4 

GRAND JURY, 

each term of the circuit court to have a list of the 

supervisors .. 58 

HACKNEY COACHES.. 11,64 

HANDS, 

calling them out (P. O.)...... 46 

the warning_ 47 

the supervisor to call out__ 50 

may pay persons to warn in____ 54 

(T .0.)_ 81 

HIGHWAY (see Primary Organization; Township Organization) 

defined__ 1 

defined by the statute ___ ___ 12,01 

the generic name for all kinds of public ways_ 1 

notice, application for new road or alteration of a road 18 

laid out, order of the county board necessary _ 28 

when deemed to be laid out under the statute . 20 


HIGHWAYS GENERALLY 


1-7 


1. Defined; kinds of ways___ 

2. Their creation ..... 

1. By legislative authority....... 

2. By dedication, user _____ 

3. By necessity______ 

3. Their nature, easements or servitudes_ 

4. Their establishment, maintenance, repair_ 

5. Obstructions, nuisances..... 

6. Scope of the subject__ 

HIGHWAYS, ROADS, NEW ROADS, LOCATION AND 
RELOCATION (P. 0.)_____ 

9. Roads laid out pursuant to law, not vacated and if 

used within five years, declared highways_ 

10. Petition of at least thirty-five voters (except in coun¬ 

ties of less than three hundred voters, when fifteen 
shall be enough,) to the county court necessary to 
inaugurate the opening of a new road; applicants to 
deposit money to pay for viewing, to be refunded if 
the road be recommended by viewers__ _ 


1 

1,2 

1,2 


3.4 

4.5 
5,0 
0,7 

11-41 
12, 01 


13-15 
































INDEX. 


187 


HIGHWAYS, ROADS, NEW ROADS, ETC.—Continued 

11. The county court to inquire as to the getting up of 

the petition, concerning the signers and their interest 
in the road, and if notice of the application has been 
given...... 16 

12. The court to pass on the merits of the application, 
and if of the opinion that the public good and con¬ 
venience require it, shall appoint three disinterested 
viewers, who, if they also be of the same opinion, 
shall proceed to locate the road — procedure prescribed 

— and make the report if they deem the road necessary 17-19 

j 3. Viewers’ report_____ 19-24 

14. Proceeding to vacate a useless or burdensome road 
prescribed; the petition,the notice, deposit for cost,etc. 24-26 

15. Opening a new road, how it shall be accomplished 27 

16. Cart road, how to be obtained for private use _28-9)1 

17. Petition for change, relocation, and proceeding prior 

and subsequent to the same__31,32 

18. Roads on county lines ; joint proceedings prescribed 

for laying out a new road or changing location, or 
vacating a road on such lines.__.. 32,33 

19. Remonstrances may be presented and considered, 

with the authorized applications for or concerning 
roads, to the county court___33,34 

20. Surveys of roads to be made, plats returned, with 

the report of the viewers, and a record made.. 34 

21. The viewers to be sworn; their duties generally.. 34,35 

22. County surveyors may act without further quali¬ 
fication, and administer oaths to associates .. 35 

23. Persons and corporations over whose lands roads 
pass, may object if they cannot agree with the county 
authorities as to damages,whereupon the county court 
is to call a jury of six freeholders to view and assess ; 
appeal may be taken to the circuit court, whose deci¬ 


sion is to be final; procedure prescribed_ 35,36 

24. Obstructing highways or private road, injuring 
guide boards, milestones, etc.; penalties prescribed.. 36-38 

25. Complaint or information of any such offense cog¬ 
nizable by any justice of the peace of the county_38-40 

26. Flooding highways or private roads prohibited; 

penalties__-.— 40 

27. Driving, riding, etc., on or across a bridge faster than 

a walk, an offense; penalty for each offense, five dol¬ 
lars ; procedure, indictment on complaint or informa¬ 
tion_...- 40,41 

HIGHWAYS, COMMISSIONERS OF, 

their powers and duties..-.65-79 

HIGHWAYS, OVERSEERS OF, 

their powers and duties.- 79-83 

HIGHWAY TAXES, 

enforcement of, under T. 0. (see Primary Organization,) 89-92 

HORSES 

to be hitched if left unattended. 10, 63 















188 


INDEX. 


IDLE, THE 

turbulent, liinderers, and disobedient, to be discharged 

and compelled to pay one dollar fifty cents per day.. 49, 85 

IMPASSABLE, 

if a highway be, the public have a right to pass in 

another line over private property... 8 

IMPLIED ACQUIESCENCE.... 2 

INCORPORATED 


towns and cities, the charters of, to control as to high¬ 


way taxes and labor..... 51 

INDEMNITY 

for land taken for public use (see Compensation ). 2 

INJUNCTION 

may be had when the statute makes no provision for 

j ust compensation _____ 2 

allowed to prevent a threatened inclosure of a highway 39 

INJURY, WILLFUL, 

on the road______ 11, G4 


INTENTION 

to dedicate or e'stoppel must be shown.. 3 

JURISDICTION 

of justice of the peace....... 11 

of the county court over state and other roads, full and 

ample___ 59 

of the county court over county affairs to be superseded 

by the board of county commissioners.. 41 

(see Township Organization: Fines and Penalties) _85-89 

JURY, 

compensation to be determined by_ 2 

of six called; damages assessed after view__ 3G 

grand, each to have a list of the supervisors .. 58 

(T. 0.)_ .118-123 

JUSTICES OF THE PEACE, 

their jurisdiction to the amount of two hundred dollars 11 
suits for road-labor, road tax and fines and forfeitures 

to be brought before by the supervisor_ 52 

appeal from liis decision to the circuit court_ 52 

(see Township Organization: Fines and Penalties) _ 85-89 

JUSTIFICATION 

of an overseer or supervisor under the order, how made 35 


LABOR, 

order fixing number of days’...47, 84, 85 

LABOR AND COMMUTATION__49,84,85 

LABOR SYSTEM, 

or tax system may be adopted__.47, 84, 85 

LAND 

taken for highways must be paid for (see Compensation) 2 
LANE, 

a, cannot be forced upon the public as a highway_ 14 

LAW OF THE ROAD...6, 8, Gl, 62 























INDEX. 


189 


LEGISLATION 

relative to roads in Illinois (see Statutes) . 8 

LEGISLATIVE AUTHORITY, 

highways created by ____1, 7-60, 61-151 

LIABILITY 

of common carriers.... t 10,11, 63, 64 

LIST 

of supervisors to be made by the clerk for each grand 

jury _ 58 

( see Town Clerk ) _____ 74 

LIST, TAX. 48,74 

LOCATION, 

the survey and plat is evidence of..15, 141, 142 

MEET, 

when carriages on the highway, turn to the right when 

practicable.. 8,61,62 

MEETING, 

parties in, must bear to the right... 6, 62 

MISCELLANEOUS PROVISIONS (P. O.) __ 58-59 

43. Road labor and taxes to be performed, and col¬ 
lected annually by the first Monday of December_53, 54 

44. Each supervisor to make a report as prescribed, and 
settle with the court annually at the December term 54—56 

45. The supervisors authorized to enter on Linds to 
make ditches, sluices, drains and water-courses; dam¬ 


ages, how assessed and paid....56, 57 

46. Teams may be employed to haul, plow and scrape, 
and contracts made for tools, implements and ma¬ 
chinery by the supervisors, under the direction of 

the county court ____57,58 

47. Penalty prescribed for nonfeasance of the super¬ 
visor ____ 58 

48. The county clerk is to furnish, at each term of the 

circuit, a list of the names of the supervisors to the 
grand j ury_____ 58 

49. The supervisors must take good care of plows, 

scrapers and other tools and machinery of the 
county ; penalty for nonfeasance... 58 

50. One-half of the labor to be done by the tenth day 

of June in each year___ 58 

51. Compensation of the county clerk, surveyor, viewers 

and supervisors to be reasonable, and paid by allow¬ 
ance and the order of the county court out of the 
county treasury....- 59 

52. Jurisdiction over and concerning state roads con¬ 
ferred on county courts.... 59 

(T. 0.) .... .95,96 

MONEY 

deposited for a view to be refunded if report be favorable 14 
NAME, (P. 0.) 

corporate, of the county to be used in bringing suits 53 

highway the generic, for all kinds of public ways- 1 

of town to be used (T. O.)... 86 























190 


INDEX, 


NATURE OF HIGHWAYS, 
easements or servitudes . 


3 


NECESSITY, 

when a highway may be created by. 3 

NEGLIGENCE.........11, 61, 62 

NEW ROAD, (P. O.) 

application for...... 13 

petition for (see Petition ) ....16-24 

(sec Township Organization) ---103, 104,105, etc, 

(see Petition) 


NEW YORK STATUTES 

adopted, with their interpretation___ 7 

NONFEASANCE, (P. 0.) 

of supervisor renders him liable to indictment.. 58 

of overseer, penalty for____ 83 

NOTICE, (P. O.; 

of application for a cartway or private road__ 20 

of application for a new road_ 17,18 

of application, two forms of, given.... 17,18 

of application to be inquired into___ 16 

to be served, and how, on railroad companies_ 59, 60 

from the clerk to the supervisor; service of ; return .. 44 

the supervisors__ 50 

(see Township Organization : Application) _130, 131 

(see Private Way) _ 76-78 

NUISANCE, 

failure to repair renders authorities liable to indict¬ 
ment for__ 5 


OBSTRUCTION OF HIGHWAY 

a common law nuisance....5,36-41 

OCTOBER, 

road labor to be performed and tax collected by the 


first of (see Township Organization) _ 

OFFICE, TOWN CLERK’S, 

commissioners to meet at___ 73 

ORDER, (P. 0.) 

appointing viewers___ 19 

of the county commissioners, essential to establishment 

of a new road under act of 1835__ 16 

relocating necessary_ 62 

appointing viewers for a private way.„_ ' 30 

dividing a county into road districts___ 42 

filling a vacancy in the office of supervisor of highways 45 

fixing the number of days’ labor annually_ 47 

(see Township Organization: Alteration, Vacation and 

Establishment of Roads) _. ..103-148 

ORGANIZATION, 

roads and bridges in counties under primary.___ 7-60 

roads and bridges in counties under township..7, 61-151 

OVERSEERS OF HIGHWAYS, 

compensation of_ 79-83 

































INDEX. 


191 


OWNER 

continuing drunken driver in his employ to forfeit $5 

per day....- 10,02 

proof of dedication by, depends on the intent, express 

or implied__ 2, 3 

“ PAID 

when tax is paid, the word to be written after the name 

in the list.....53, 90 

PENALTY (P. O.) 

for refusing to serve as a supervisor_ 45 

for failure to notify supervisors_____43,44 

party must be prosecuted civilly for obstructing high¬ 
way___!... 38 

(T. O.). 85-89 

PETITION, (P. O.) 

for a cartway or private road..... 29 

for change or relocation of a road.... 32 

for a new road..... 13 

for a new road________ 16,17 

the notice__ 17,18 

, affidavit of posting...*__ 18 

order appointing viewers_ 19 

agreement for damages__ 20 

release of damages_ 21 

unfavorable report_ 22 

favorable report.. 21-23 

the order establishing the road____ 23,24 

presentation of, duty of the court on___ 16 

to vacate a useless road__ 25 

(see Township Organization: Application ) ..103-148, 130,131 

PLANK ROAD 

company cannot close up a highway to prevent diver¬ 
sion of travel__ 39 


PLANK ROADS__ 176 

are highways. 14 

PLAT, 

dedication by making___ 39 

survey, report__ 34 

(T. O.)_141, 142 

PLOWS, 

scrapers and tools to he cared for by the supervisor_ 58 

not to be lent_____ 58 

(see Overseers of Highways )_____79-83 

POLL TAX 

not prohibited. 51 

(T. 0.) _____ 74 

POSTING, (P. O.) 

affidavit of...... 18 

(T. O.)_ 107 

POWERS AND DUTIES 

of supervisors of highways-- 45 

overseers of highways..—..79-83 

commissioners of. 65-79 






































192 


INDEX. 


PRESENTATION 

of a petition to locate or relocate a road, (P. 0.)_.. 16 

(T. O.)___-__102-148 

PRIMARY ORGANIZATION_ 7-60 

{see Township Organization) _61-151 

Abandonment of highway _ 13,14 

on, soil reverts to owner___ 4 

Abatement of nuisance_ 5 

Acceptance of damages 

by owner, a waiver of all further question_ 34 

Acceptance of highway 

by the public, user the proper proof of_ 3 

Acceptance of office 

by supervisor, return of, by sheriff__ 47 

Accidents__ G 

Accommodation 

by travelers of each to the other_ 6 

Acquiescence 

of owner in public use of his property_ 2 

Acquisition of highway, 

the modes of pointed out_ 15 

Action 


for fines, etc. ( see Suits). __ 52 

Act of April 10, 1872, 

repealed_____60,150 

tax collected under, how to be expended.. _ .60,150 

Act of April 11, 1873 _7, 61-151 

Act of April 18, 1873_ 7-60 

emergent_ 60 

Adjustment of damages _ 37 

Affairs, county, 

jurisdiction of the county court over_ 41 

Affidavit 

of posting notice of application for a road_ 18 

of service and posting notice for a cartway or pri¬ 
vate road_ 30 

of the supervisor to the list___53, 54 

Allowance 

may be made by the supervisor for amount paid 

for persons appointed to warn in the hands_ 54 

Altering a road__ 13 

Amendments : 


record may be amended in suits brought for road 

labor, road tax, etc_ 52 

Animus dedicandi 

must appear_ 3 

Annual report, 

supervisors’_____55, 56 

Appeal 

by a county may be made___ 33 

from the award of the jury to the circuit court, 

whose decision shall be final_ 36 

from the county commissioners’ report_ 26 

in suits brought for road tax... 52 



































INDEX. 


193 


PRIMARY ORGANIZATION —Continued. 

Application 

for a new road to be signed by thirty-five voters of 
the county residing within five miles of proposed 

route__ 13 

the hearing and procedure_ 16-24 

Applications 

to be made to the board of county commissioners. _ 16 

Appointment 

of viewers_ 16 

order appointing_ 19 

Assessment of damages 

by a jury, how arrived at_ 35,36 

Authority, legislative, 

highways may be created by._ 1 

Board, 

the, of county commissioners___59, 60 

53. Jurisdiction over and concerning state roads 
conferred on county courts ; but after their elec¬ 
tion the board of county commissioners (Const. 

1870, §6, art. 10) is to accede to such jurisdiction 59 

54. Railroad companies to be notified_59, 60 

55. Notices to be served on nearest station agents. 60 

56. Money collected under the highway act of 1872 

to be expended for highways_ 60 

57. The act of April 10, 1872, and former conflict¬ 
ing acts, repealed_ 60 

58. Emergent__ 60 

to supersede the county court in county matters.. 59 

Bridge regulations, 

driving faster than a walk___40,41 

Bridges 

are but streets or highways over water_ 14 

to be put in good repair_ 58 

Calling out the hands___ 46 

warning.. 47 

Carriage 

defined... 11 

Carriers, 

liabilities of, for injuries on the road..— 10,11 

Cartway 

or private road, how prescribed by statute... 28 

Change 

and relocation, application may be made_ 31 

Circuit court, - 

decision to be final on appeal__—. 36 

Claim 

for damages_ 24 

must be promptly and properly made, or it will 

be waived____— 36 

when to be made_ 19 

Clerk 

to notify appointed supervisors through the sheriff 43 

form of notice, etc_ 44 

to make for the grand jury a list of names of the 

supervisors_ 58 

9 




























194 


INDEX. 


PRIMARY ORGANIZATION — Continued. 

Coaches, 

hackney___ 11 

Collision __-.— 6-11 

Commissioners, 

the board of county, to supersede the county court 

in county matters_ 59 

order of, essential to establishment of a new road, 

under the act of 1835_ 16 

Common carriers, 

liability of__ 10,11 

Company, railroad., 

notices to be served on, when and how .. 60 

Compensation, 

private property shall not be taken for public use 

without just._ 2 

compensation for private property must invariably 

be made_ 14 

to be determined by a jury_ 2 

of sheriffs, county clerks, viewers, surveyors, and 

supervisors to be fair and reasonable ... 59 

Contracts 

may be made by the supervisors_ 50,57 

CONTRI-BUTIVE 

negligence_ 11 

Corporate 

name of the county to be used in suits.. 53 

County, 

division of the, into road districts ... 42 

County clerk, 

his notice to the supervisors; sheriff to serve it; 

the return_ 43 

to make a list of the supervisors for each grand 

jury__ 58 

County clerks, 

their compensation_ 59 

County commissioners, 

the board of,to supersede “the county court”_ 59 

order essential to establishment of a new road 

under the act of 1835_ 16 

County court, 

the, or the board of county commissioners (art. 10, 

§6, Const. 1870)—jurisdiction; supervisors (of 
roads)- 41-51 

28. Board of county commissioners, vested with 
the general superintendence over public roads, 
may cause new roads to be located, and to alter 

or vacate roads within their respective counties. 41,42 

29. At the December term annually to divide their 

respective counties into road districts, and ap¬ 
point a supervisor for each road district; first 
supervisors, however, to be immediately appoint¬ 
ed, and districts to be made...42, 43 






















INDEX. 


195 


PRIMARY ORGANIZATION — County Court — Con¬ 
tinued. 

30. Notice of their appointment to be served by 

tiie sheriff on the several supervisors, accepting 
which they are each to return a poll list within 
fifteen days to the county clerk ; sheriff’s return ; 
fines for nonfeasance and misfeasance of the 
county clerk and sheriff prescribed....43,44 

31. Failure of supervisor to accept, mulcts him in a 

five dollar fine, for the benefit of roads; the county 
court may excuse him, and create vacancies, and 
shall fill them promptly at the term when they 
occur___ 45 

32. Duties of the supervisor detailed and prescribed; 

to maintain and properly keep roads and bridges 
in his district in good repair, together with guide 
boards, etc_ 45 

33. To remove obstructions, repair and rebuild 

roads and bridges, and call out the persons owing 
road labor for such purpose to perform it; if the 
expense will not exceed ten dollars, may hire; if 
it will, then he is to report for instructions to the 
board of county commissioners_40, 47 

34. The county court, at the December term in each 
year, to prescribe road labor for the able-bodied 
males between the ages of twenty-one and fifty, 

to be certified to each supervisor_ 47 

35. Road tax not exceeding twenty cents on each one 
hundred dollars of taxable property within the 
county may be assessed by the county court an¬ 
nually, at the September term ; tax book ; but 

the tax system as a whole may be adopted_47, 48 

30. The labor system, modus operandi, tax list to be 
made by the clerk and delivered through the 
sheriff to the supervisor of every road district, 
under prescribed penalties for failure, etc_ 48 

37. Supervisor to give three days’ notice; work, 

how performed, etc__ 40 

38. The tax list; notice to be given ; work, how 

performed, etc_ 50 

39. Incorporated cities, towns and villages; the 
charter to govern in the matter of highway labor 

and taxes_ 51 

Jurisdiction full and ample over state and other 

roads- 50 

County surveyor 

qualified ex-officio to act as road viewer_ 35 

Creation of highways 

by legislative authority-- 1 

by dedication- 2 

by necessity_ 3 

Damages, 

claim for.. 24 

adjustment_ 37 

agreement for..10, 20 




















INDEX. 


196 


PRIMARY ORGANIZATION — Damages — Continued. 

release of___19, 10 

assessment of, by a jury, liow arrived at-- 36 

verdict of a jury assessing_ 33 

must be paid before road can be worked, i.e. 

opened____ 3 

resulting from collision..... 11 

for obstruction of highway ... 6 

for drainage, etc___56, 57 

Days’ labor ftxed, 

order for the purpose... 47 

Debt, 

action of, prescribed for recovery of penalty for 

obstructing a highway___ 39 

December, 

supervisor to collect and have labor performed by 

first Monday of... 53 

Declaration 

of owner of intention to dedicate... 2 

Dedication 

by making plat___ 39 

for a footway, horseway or driftway... 3 

ingredients of the evidence of... 2 

Definition 

of carriage____ 11 

of highway_ 1, 12 

Deposit 

of expenses of a view by applicants for a new road 14 
Description 

of route of a new road__ 27 

Districts, 

order dividing a county into__ 42 

road, to be made in 1873, at June term of county 

court_ 42 

road, when to be made in June 1873, first at the 

December term afterwards___ 42 

Ditches, 

sluices, drains and water-courses to be made_..56,57 

Division of the county 

into road districts at December session.. 42 

Drains, 

ditches, sluices and water-courses to be made_56, 57 

Drivers 

addicted to drunkenness not to be employed. 9 

Driving 

fast, prohibited__ 10 

furious, an indictable offense.... 6 

Drunkenness, 

driver addicted to, not to be tolerated..'_ 9 

Due care. 11 

Easement, 

a highway is but an..... 3 

Ejectment 

will lie by owner of the fee for encroachments on 
highway....... 


4 






























INDEX. 


197 


PRIMARY ORGANIZATION — Continued. 

Emergency 

for the act of April 18, 1873.. (30 

Equestrians 

not bound to turn to the right..... 6 

Equitable estoppel, 

acts and declarations relative to dedication_ 3 

Estoppel, 

if damages be not promptly and aptly claimed on 

notice, will ensue_36, 37 

party owning land and permitting public use 
thereof for a highway may estop himself from 

reclaiming it_ 3 

Evidence 

of dedication_ 2 

weight of, in causes for obstructing highway_ 39 

Exemptions_ 51 

Expenses of view 

to be deposited.. 14 

Fast driving 

an indictable offense at common law_ 6 

prohibited_ 10 

Fee of highway 

is usually in the owners of adjoining property_ 3 

Fence, 

any person may remove one from a highway_ 39 

supervisor’s notice to remove_ 38 

Fine 

against supervisor for nonfeasances from $5 to $50 58 

for plowing up highway or turning a current of 

water into it_ 40 

supervisor liable for, in case he lends plows, 

scrapers, etc_ 58 

Foot passengers 

not bound to turn to the right_ 6 

Footway, 

there may be a dedication for__ 3 

Freeholder 

may apply, when, and for a cart road_ 28 

Fruit trees 

growing on highway belong to the owner of the fee 4 
Grand jury, 

each term of the circuit court to have a list of the 

supervisors_ 58 

Hackney coaches_ 11 

Hands, 

calling them out_ 46 

the warning__— 47 

the supervisor to call out-- 57 

may pay persons to warn in—-- 54 

Highway 

defined..__ 1 

defined by the statute_ 12 

the generic name for all kinds of public ways- 1 




























198 


INDEX. 


PRIMARY ORGAN 1ZATION — Highway — Continued. 

notice — application for new road or alteration of a 

road_ 13 

laid out, order of the county board necessary- 23 

when deemed to be laid out under the statute- 26 

Highways generally_ 1-7 

1. Defined kinds of ways.._..- 1 

2. Their creation...... 1, 2 

1. By legislative authority... 1, 2 

2. By dedication, user_ 2 

3. By necessity_ 3 

3. Their nature, easements or servitudes-3,4 

4. Their establishment, maintenance, repair_ 4, 5 

5. Obstructions, nuisances__ 5, 6 

6. Scope of the subject_ 6, 7 

Highways, roads, new roads, location and relo¬ 
cation. __ 11-41 

9. Roads laid out pursuant to law, not vacated and if 

used within five years, declared highways_ 12 

10. Petition of at least thirty-five voters (except in 
counties of less than three hundred voters, when 


fifteen shall be enough,) to the county court 
necessary to inaugurate the opening of a new 
road; applicants to deposit money to pay for 
viewing, to be refunded if the road be recom¬ 


mended by viewers...13-15 

11. The county court to inquire as to the getting up 

of the petition, concerning the signers and their 
interest in the road, and if notice of the applica¬ 
tion has been given ...... 16 

12. The court to pass on the merits of the applica¬ 


tion, and if of the opinion that the public good 
and convenience require it, shall appoint three 
disinterested viewers, who, if they also be of the 
same opinion, shall proceed to locate the road — 
procedure prescribed—and make the report if 


they deem the road necessary... .. 17-19 

13. Viewers’ report... 19-24 

14. Proceeding to vacate a useless or burdensome 
road prescribed; the petition, the notice,deposit 

for cost, etc.. 24-26 

15. Opening a new road, how it shall be accom¬ 
plished.. 27 

16. Cart road, how to be obtained for private use. 28-31 

17. Petition for change, relocation, and proceed¬ 
ing prior and subsequent to the same.31,32 

18. Roads on county lines ; joint proceedings pre¬ 

scribed for laying out a new road or changing 
location, or vacating a road on such lines_ 32, 33 

19. Remonstrances may be presented and consider¬ 

ed, with the authorized applications for or con¬ 
cerning roads, to the county court... 33,34 


20. Surveys of roads to be made, plats returned, 
with the report of the viewers, and a record 
jnade......... 


34 

























INDEX. 


190 


PRIMARY ORGANIZATION — Highways, Roads, Etc.— 
Continued. 

21. Tlie viewers to be sworn; tlieir duties gen¬ 
erally ........ 34, 35 

22. County surveyors may act without further 
qualification, and administer oaths to associates, 35 

23. Persons and corporations over whose lands 
roads pass, may object if they cannot agree with 
the county authorities as to damages, where¬ 
upon the county court is to call a jury of six 
freeholders to view and assess; appeal may be 
taken to the circuit court, whose decision is to 

be final; procedure prescribed...35, 30 

24. Obstructing highways or private road, injur¬ 

ing guide boards, mile stones, etc.; penalties 
prescribed_ 36-38 

25. Complaint or information of any such offense 

cognizable by any justice of the peace of the 
county_ 38-40 

26. Flooding highways or private roads prohib¬ 
ited ; penalties_ _____ 40 

27. Driving, riding, etc., on or across a bridge faster 
than a walk, an offense; penalty for each offense, 
five dollars; procedure, indictment on complaint 

or information....-... 40, 41 

Horses 

to be hitched if left unattended_ 10 

Idle, the, 

turbulent, hinderers, and disobedient, to be dis¬ 
charged and compelled to pay one dollar and 

fifty cents per day... 49 

Impassable, 

if a highway be, the public have a right to pass in 

another line over private property.... 3 

Implied acquiescence... 2 

Incorporated 

towns and cities, the charters of, to control as to 

highway taxes and labor-*-- 51 

Indemnity 

for land taken for public use .- - 2 

Injunction 

may be had when the statute makes no provision 

for just compensation-.- 2 

allowed to prevent a threatened inclosure of a 

highway ..... 39 

Injury, willful, 

on the road..-. H 

Intention 

to dedicate or estoppel must be shown. 3 

Jurisdiction 

of justice of the peace...—.. 11 

of the county court over state and other roads, 

full and ample. ---- ..59 

of the county court over county affairs to be super¬ 
seded by the board of county commissioners- 41 




















200 


IKDEX. 


PRIMARY ORGANIZATION — Continued. 

Juiiy, 

compensation to be determined by...— 2 

of six called; damages assessed after view.. 36 

grand, each, to have a list of the supervisors- 58 

Justices of the peace, 

their jurisdiction to the amount of two hundred 

dollars.....- - - - H 

suits for road labor, road tax, and fines and forfeit¬ 
ures to be brought before, by the supervisor- 52 

appeal from his decision to the circuit court- 52 

Justification, 

of an overseer or supervisor under the order, how 

made ..—.-.-. 35 

Labor, 

order fixing number of days’... 47 

Labor system, 

or tax system may be adopted... 47 

Land 


taken for highways must be paid for —. 2 

Lane, 

a, cannot be forced upon the public as a highway. 14 

Law of the road___ 6,8 

Legislation 

relative to roads in Illinois__ 8 

Legislative .authority, 

highways created by.. 1 

Liability 

of common carriers..... 10,11 

List 

of supervisors to be made by the clerk for each 

grand jury. 58 

List, tax_ 48 

Location, 

the survey and plat is evidence of__ .. 15 

Meet, 

when carriages on the highway, turn to the right 

when practicable... 8 

Meeting, 

parties in, must bear to the right... 6 

Miscellaneous provisions.. 53-59 


43. Road labor and taxes to be performed and col¬ 
lected annually by the first Monday of December 53, 54 

44. Each supervisor to make a report as prescribed, 
and settle with the court annually at the Decem¬ 


ber term_____ 54-56 

45. The supervisors authorized to enter on lands to 

make ditches, sluices, drains, and water-courses; 
damages, how assessed and paid__56,57 

46. Teams may be employed to haul, plow, and 

scrape, and contracts made for tools, implements 
and machinery by the supervisors, under the 
direction of the county court_57,58 

47. Penalty prescribed for nonfeasance of the 

supervisor...„...... 58 

























INDEX. 


201 


PRIMARY ORGANIZATION — Miscellaneous provi¬ 
sions — Continued. 

48. The county clerk is to furnish, at each term of 
the circuit, a list of the names of the supervisors 

to the grand jury.. 58 

49. The supervisors must take good care of plows, 

scrapers and other tools and machinery of the 
county ; penalty for nonfeasance.... 58 

50. One-lialf of the labor to be done by the tenth 

day of June in each year ..... 58 

51. Compensation of the county clerk, surveyor, 

viewers and supervisors to be reasonable, and 
paid by allowance ai)d the order of the county 
court out of the county treasury... 59 

52. Jurisdiction over and concerning state roads 

conferred on county courts... 59 

Money 

deposited for a view to be refunded if report be 

favorable. 14 

Name, 

corporate, of the county to be used in bringing 

suits __ 53 

highway the generic, for all kinds of public ways. 1 
Nature of highways, 

easements of servitudes..... 3 

Necessity, 

when a highway may be created by__ 3 

Negligence.. 11 

New road, 

application for__ 13 

petition for ( see Petition )_ 10-24 

New York Statutes 


adopted, with their interpretation__ 7 

Nonfeasance 

of supervisor renders him liable to indictment_ 58 

Notice 

of application for a cartway or private road_ 29 

of application for a new road...17,18 

of application, two forms of, given_17,18 

of application to be inquired into_ 10 

to be served, and how, on railroad companies_59, 00 

from the clerk to the supervisor; service of; return 44 

the supervisors_ 50 

N UISANCE, 

failure to repair renders authorities liable to 

indictment for_ 5 

Obstruction of highway, 

a common law nuisance__.5, 30-41 

Order 

appointing viewers__ 19 

of the county commissioners essential to establish¬ 
ment of a new road under act of 1835_ 10 

relocating necessary_ 32 

appointing viewers for a private way... 30 

dividing a county into road districts —.. — _ 42 




























202 


INDEX. 

PRIMARY ORGANIZATION — Order — Continued. 

filling a vacancy in the office of supervisor of high¬ 


ways __-. 45 

fixing the number of days’ labor annually.. 47 

Organization, 

roads and bridges in counties under primary.. 7 

roads and bridges in counties under township_ 7 

Owner 

continuing drunken driver in his employ to forfeit 

$5 per day_ 10 

proof of dedication by, depends on the intent, 

express or implied... 2, 3 

“ Paid”: 


when tax is paid, the word to be written after the 

name in the list_ 

Penalty 

for refusing to serve as a supervisor_ 

for failure to notify supervisors_ 

party must be prosecuted civilly for obstructing 

highway_ 

Petition 

for a-cartway or private road.. 

for change or relocation of a road_ 

for a new road .....13, 

the notice_ 

affidavit of posting__ 

order appointing viewers__ 

agreement for damages____ 

release of damages_ 

unfavorable report_ 

favorable report._____ 

the order establishing the road___ 

presentation of, duty of the court on_ 

to vacate a useless road_ 

Plank road 

company cannot close up a highway to prevent 

diversion of travel_ 

Plank roads 

are highways...... 

Plat, 

dedication by making___ 

survey, report____ 

Plows, 

scrapers and tools to be cared for by the supervisor 

not to be lent___ 

Poll tax 

not prohibited___1_ 

Posting, 

affidavit of___ 

Powers and duties 

of supervisors of highways___ 

Presentation 


53 

45 

43,44 

38 

29 
32 
1G, 17 
17,18 
18 

19 

20 
21 
22 

21-23 

23,24 

16 

25 


29 

14 

39 

34 

58 

58 

51 

18 

45 


of a petition to locate or relocate a road_ 16 

Primary organization, 

roads and bridges in counties under.... 7 


































INDEX. 


203 


PRIMARY ORGANIZATION —Continued. 

Private property, 

liow taken for public use. 2 

Private road, 

prescribed mode of laying out.. 28 

Private way 

cannot be laid out against tlie objections of owners 30 
Procedure 

for obstructing a highway. 38 

Proof of dedication 

depends upon the intent of the owner .. 3 

Property, 

private, how taken for public use... 2 

Qui TAM 

against owner for employing a drunken driver_ 9 

Racing 

and furious driving prohibited.. 10 

Railroad company, 

notice to be served upon, when and how.. 60 

Railways 

are highways (Const. 1870)____ 13 

Refusal 

of office by supervisor, return of.. 44 

Regulations, 

bridge...____40,41 

Remedy 

for obstructing a highway, complete, at law.. 38 

Remonstrance, 

form of......... 33 

may be made, filed and heard .. 33 

Repairs 

of highways________ 4-5 

Report, 

unfavorable, when to be made by the viewers_ 16 

favorable, if it be, deposit to be refunded_ 15 

survey—plat_ _____ 34 

of the viewers, favorable. 21-24 

unfavorable__ 22 

of supervisor.. 54,56 

Returns, 

sheriffs’, on notice to supervisor of acceptance or 

refusal... 44 

Right, 

turn to the, if practicable. 6 

Road, 

the law of the. 6 

common carriers, etc_ 8,10 

1. Turn to the right if practicable .. 8 

2. Intemperate or drunken drivers not to be em¬ 
ployed .. 9 

3. Driver guilty of becoming intoxicated on duty 

to be discharged ; passenger may, by complaint 
verified by oath to the proprietor, cause the dis¬ 
charge . 9,10 




























204 


INDEX. 


PRIMARY ORGANIZATION — Road — Continued. 

4. Running horses or carriage on any occasion pro¬ 
hibited ; a misdemeanor ; penalty prescribed— 10 

5. Horses to be securely hitched with a sufficient 

rope or halter....— 10 

0. Carriers liable for injuries in damages.... 10,11 

7. “ Carriage ” defined — any vehicle used for the 

transportation of either passengers or goods_ 11 

8. This act not to affect hackney coaches in cities, 

nor ordinances relating to them__ 11 

Roads and Bridges 

in counties * under primary organization_ 7,60 

1. The road, common carriers, etc.... 7,11 

II. Highways, new roads, location and relocation.. 11,41 

III. The county court, or the board of county com¬ 

missioners (Art. 10, § 6, Const. 1870)—jurisdic¬ 
tion ; supervisors (of roads)... 41-51 

IV. Suits for road labor and road taxes. 52 

V. Miscellaneous provisions____ 53-59 

VI. The board of county commissioners invested 

with courty court jurisdiction in such matters; 
repeal, etc..... 59,60 

Roads, 

supervisor to construct... 58 

damages, assessment of..... 33 

on county lines, how laid out, altered or vacated. _ 32 

Road Tax, 

assessed. 47 

order. 48 

Rules 

of the road. 6 

Scope 

of this treatise stated.. 6,7 

Servitude, 

a highway is.. 3 

Settlement 

by the supervisor with the county commissioners. 54 
Sewerage 

in highways or streets ( see Streets) . _. 4 

Sheriff’s 

return of acceptance by supervisor..... 44 

of refusal. 44 

compensation of.. 59 

Sidewalks 

are a part of the highway.... 14 

Sluices, 

ditches, drains and water-courses to be made.56,57 

Speed, 

travelers bound to drive at a moderate rate of_ 6 


* An act in regard to cartways, roads and bridges in counties not under 
township organization. Laws 1873, Myers’ Ed. p. 59. 

An act in regard to roads and bridges in counties under township organi¬ 
zation, approved and in force April 11, 1873. Laws 873, Myers’Ed. p. 30. 



























INDEX. 


205 


PRIMARY ORGANIZATION — Continued. 

Statutes of New York 

adopted, and their interpretation__. 7 

c. 93 R. S__ G 7 

act April 18, 1873 ... ’7 

act April 11, 1873 .... 8 

Steam 


may, by permission, be used as a motive power 

along the streets... 

Substitute 

may be provided to work out tax. 

Suits 

for road labor and taxes. 

40. Supervisors to sue in tlie name of the county, 
and may testify ; appeal lies to the circuit court 

41. The forum may be that of any justice of the 

peace of the county __.... 

42. The proceedings are to be instituted and pros¬ 

ecuted in tlie corporate name of the county ; 
formality and technicality as to corporate name 
not essential; tlie record may be amended to 
correct it if wrongly pleaded or used.. 

Supervisor 

to be notified of establishment of a new road, and 

to open it if be have tlie necessary funds.. 

notice..... 

notice to remove fences___ 

to remove obstructions and perform labor_ 

affidavit to the list.... 

bis report....... 

settlement _ ____ 

to sue in the name of “ Tlie county of-” ; 

be may testify; appeal.... 

compensation_ 

list of to be made for each grand jury.. 

Supervisor of highways, 

bis appointment, notice to him ; acceptance or re¬ 
fusal; powers and duties... 

Survey 

of a public road...... 

of a route for a new road..—. 

to be made by the viewers, and when__ 

report, plat.... 

Surveyor, 

the county, may administer oaths to associates- 

compensation... 

System, labor 

or tax, may be adopted . .. 

Tax, 

the power to..... 

Tax list....-. 

Tax, road, 

order assessing.... 

Tax system 

or labor system may be adopted. 


15 
49 
52, 53 
52 
52 


52,53 


27 
50 
38 
46 
54 
54,55 
54 

52 

59 

58 


43-45 

15 

21,22 

16 

34 

35 
59 


47 

50,51 

48 

47,48 

47 

































206 


INDEX. 


PRIMARY ORGANIZATION —Continued. 

Tax already collected, 

how disposed of... 

Teams, 

supervisor may hire the necessary... 

“The board of county commissioners” 

to supersede the county court in matters relating 

to roads and bridges... 

TnE COUNTY COURT, 

its jurisdiction over county affairs. 

Toll, 

taking, evidence of duty to maintain a highway.. 
Tool, 

every person to bring his, as notified.. 

Township organization, 

roads and bridges in counties under.__ 

Travel 

may slightly deviate from the thread of the road. 
TREES AND FRUIT 

growing on the highway belong to the owner of 

the fee_____ 

Trespass 

by owner of the fee will lie for digging up and 

removing the soil, etc......_ 

Turn to the right, if practicable.. 

Unfavorable report 

of viewers.... 

Unpaid taxes, 

supervisor to sue for.... 

Useless or burdensome road 

may be vacated____ 

User, 

twenty years’, acquiescence.... 

Vacancy, 

when and how it may occur in office of supervisor, 

and how and when filled. _.... 

Verdict 

of a jury assessing damages. 

View, 

expenses of, to be deposited.. 

Viewers 

may be appointed____ 

order appointing.. .. 

order appointing for private way.... 

when appointed, their powers and duties_ 

to be sworn.____ 

their duties further prescribed__ 

modus operandi of suggested... 

report ....... 

compensation... 

Voters, 

thirty-five residing in the county, within five miles 

of the road, to apply.... 

Vouchers 

should be taken and kept by the supervisor. 


60 


57,58 


59 

41 


49 


14 


4 


4 

8 

16-22 


24 

2 


45 

38 

14 

16 

19 

30 

16 

35 

35 

19 

21-24 

59 


26 


56 





























INDEX. 


207 


PRIMARY ORGANIZATION — Continued. 

Watercourses 

to be made__... 57 

Waiver 

by owner’s acceptance of damages... 34 

Warning 

by the supervisor_ 50 

Ways, 

kinds of, specified_ 1 

WlUUFtTL INJURY_ 11 

Work, 

regulations for, prescribed. __ 49 

Years, 

twenty, essential usually to make a dedication by 

acquiescence-._ 2 

PRIVATE PROPERTY, 

how taken for public use..2,1G, 102-148 

PRIVATE ROAD, 

prescribed mode of laying out-..28,130,131,176 

PRIVATE WAY 

cannot be laid out against objections of owners, 30,130,131,176 

PRIVATE WAYS.......176,178 

1. A way is a passage, street or road... 176 

2. A right of way, by prescription, by necessity, by 

reservation, by custom, in gross, or appendant_176,177 

3. Twenty years’ occupation adverse, a bar to the right 177,178 

4. The statute purporting to authorize the laying out 

of private ways against the objections of owners, un¬ 
constitutional.... 178 

PROCEDURE 

for obstructing a highway__38, 97, 98 

PROOF OF DEDICATION 

depends upon the intent of the owner__ 3 

PROPERTY, 

private, how taken for public use_ 2 

(see Compensation; Eminent Domain.) 

QUITA M 


against owner for employing a drunken driver_ 9, 62 

(see Fines and Penalties.) 

RACING 

and furious driving prohibited ... 10, 63 

RAILROAD COMPANY, 

notice to be served upon, when and how__60 

RAILWAYS 

are highways (Const. 1870)....13,164-173 

RAILWAYS AND CANALS, 164-173 

1. A railway is a road graded, having rails of iron or 

other material___164,165 

2. The right of way. 165 

3. The construction of the road; crossings at high¬ 
ways...165,166 


























208 


INDEX. 


RAILWAYS AND CANALS— Continued. 

4. Liabilities — injuries to stock, for the acts of agents, 

signals, management of trains-16G, 167 

5. Railway stock, shares, preferred stock, bonds, etc.167-171 

6. The charter a grant, inviolable...171,172 


7. 


A canal defined. 


172 

8. How constructed....172,173 

9. Navigation of..— —--- 173 

10. Tolls.... 173 


REFUSAL 

of office by supervisor, return of (P. O.)... 44 

of office by overseer (T. 0.)..82, 83 


REGULATIONS, 

bridge, etc. (P. 0.). 40,41 

bridge, etc. (T. O.).....96-102 

REMEDY 

for obstructing a highway, complete, at law..... 38 

REMONSTRANCE, 

form of (P. O.)..... 33 

may be made, filed and heard...— 33 

REPAIRS 

of highways ......45, 49, 79-85 


REPORT, (P. 0.) 

unfavorable, when to be made by the viewers 
favorable, if it be, deposit to be refunded .... 

survey — plat... 

of the viewers, favorable.. 

unfavorable___ 

of supervisor ___ 

(see Township Organization : Order.) 


16 

15 

34 


21-24 


90 


54,56 


RETURNS, 

sheriffs’, on notice to supervisor of acceptance or refu¬ 
sal (see Primary Organization : Accounts ; Reports ) 44 


of overseer to supervisor (T. O.)...90, 91-95 

RIGHT, 

turn to the, if practicable.....6, 8, 62 

of eminent domain...... 154 


RIVERS AND FERRIES.____155-163 

1. A river is a natural stream of water__ 155 

2. Rivers are either public or private, navigable or not 

navigable____ 155 

3. The bed or soil of rivers, by whom owned_155,156 

4. Rivers which are navigable highways_156,157 

5. Private rivers..... 157 

6. A ferry defined..____157,158 

7. The franchise, a grant ..... 158 

8. Establishment of ferries. .158,159 

9. A ferry franchise is an incorporeal hereditament; it 

descends to heirs, and is real estate.. 159 

10. The owners of ferries are common carriers; their 

rights and liabilities...10,11, 63 

11. A bridge defined...159,160 





































INDEX. 


209 


RIVERS AND FERRIES— Continued. 

12. Bridges either public or private..100,101 

13. Toll bridges... 102 

14. The expense of bridges, how assessed.101,102 

15. Dedication..... 102 

10. Repairs.........102,103 

17. Highways : the law of the road applicable to them. 103 

18. Private bridges.. 


ROAD, (P. O.) 

the law of the______ 

common carriers, etc...». 

1. Turn to the right if practicable.... 

2. Intemperate or drunken drivers not to be employed 

3. Driver guilty of becoming intoxicated on duty to be 

discharged; passenger may, by complaint verified 
by oath to the proprietor, cause the discharge_ 

4. Running horses or carriage on any occasion prohib¬ 
ited ; a misdemeanor; penalty prescribed.. 

5. Horses to be securely hitched with a sufficient rope 

or halter....... 

0. Carriers liable for injuries in damages.. 

7. “ Carriage ” defined — any vehicle used for the trans¬ 
portation of either passengers or goods... 

8. This act not to affect hackney coaches in cities, nor 

ordinances relating to them ... 

township organization... 

ROADS, 

supervisor to construct.. 

damages, assessment of...... 

on county lines, how laid out, altered or vacated_ 

overseer to keep in repair.. 


0 

8,10 

8 

9 


9,10 
10 
10 

10,11 

11 

11 
01, 05 


58 

33 

32 

79-83 


ROADS AND BRIDGES 

in counties* under primary organization.. 7, 00 

I. The road, common carriers, etc.. 7,11 

II. Highways, new roads, location and relocation_ 11,41 

III. The county court, or the board of county commis¬ 

sioners (Art. 10, § G, Const. 1870)—jurisdiction; 
supervisors (of roads).. 41-51 

IV. Suits for road labor and road taxes... 52 

V. Miscellaneous provisions_ 53-59 

VI. The board of county commissioners invested with 

county court jurisdiction in such matters; repeal, etc. 59, 00 
{see Primary Organization ; Township Organization .) 

ROAD TAX, (P. O.) 

assessed. 47 

order......48,89-92 


RULES 

of the road 


G, 11,02,03 


* An act in regard to cartways, roads and bridges in counties not under 
township organization. Laws 1873, Myers’Ed. p. 59. See pp. 7-60, supra. 

An act in regard to roads and bridges in counties under township organi¬ 
zation, approved and in force April 11, 1873. Laws 1873, Myers’ Ed. p. 39. 
See pp. 61-151, supra. 


9* 


































210 


INDEX. 


SCOPE 

of this treatise stated 


0,7 


SERVITUDE, 

a highway is a...- 3 

SETTLEMENT 

by the supervisor with the county commissioners (P. 0.) 54 

by the overseer with the highway commissioners (T. O.) 92-94 


SEWERAGE 

in highways or streets (see Streets) ... 4 

SHERIFF’S 

return of acceptance by supervisor. 44 

of refusal..._. 44 

compensation of, under the road law. 59 

SIDEWALKS 

are a part of the highway...14,151-154 

SLUICES, 

ditches, drains and water-courses to be made. .56, 57,100-102 
SPEED, 

travelers bound to drive at a moderate rate of_6,11,63 


STATUTES OF ILLINOIS, 

relating to roads and bridges, act April 11, 1873 

act April 18, 1873.... 

prior legislation.. 

STATUTES OF NEW YORK 

adopted, and their interpretation .. 

c. 93 R. S..... 

act April 18, 1873 .... 

act April 11, 1873 .... 


Gl-151 

7-60 

8 


•t 

6,7 

7 

8 


STEAM 

may, by permission, be used as a motive power along 
the streets....... 15 


STREETS AND ALLEYS_____151-154 

1. A street is a highway in a city or village; its uses, 

nuisances_____151,152 

2. Special assessments upon lots for the expenses of 

opening, widening, improving and the like_ 152 

3. The statutes and decisions in Illinois. ..152-154 

4. The right of eminent domain_ 154 

SUBSTITUTE 

may be provided to work out tax.. - 49 

SUITS 

for road labor and taxes (P. O.). 52,53 

40. Supervisors to sue in the name of the county, and 

may testify; appeal lies to the circuit court___ 52 

41. The forum may be that of any justice of the peace 

of the county___ 52 

42. The proceedings are to be instituted and prosecuted 

in the corporate name of the county ; formality and 
technicality as to corporate name not essential; the 
record may be amended to correct it if wrongly 
pleaded or used.... 52, 53 



























INDEX. 


211 


SUITS — Continued. 

procedure prescribed (T. O.) ._ _..._ _ 85-89 

(see Township Organization: Fines and Penalties) _85-89 


SUPERVISOR OF HIGHWAYS, (P. 0.) 

liis appointment, notice to him; acceptance or refusal; 

powers and duties.....43-45 

(see Township Organization: Overseers of Highways) _79-92 

to be notified of establishment of a new road, and to 

open it if he have the necessary funds.. 27 

notice. 50 

notice to remove fences_.. 38 

to remove obstructions and perform labor.. 4G 

affidavit to the list. 54 

liis report_ 54,55 

settlement__„... 54 

to sue in the name of “ The county of -” ; he 

may testify ; appeal. 52 

compensation.—..... 59 

list of to be made for each grand jury.... 58 


SUPERVISOR, TOWN, 

his duties under highway laws.. 94,95 

returns by...90,91 


SURVEY, (P. O.) 

of a public road..... 15 

of a route for a new road....21, 22 

to be made by the viewers, and when__ 16 

. report, plat__i—... 34 

(see Township Organization) ___110,112,141,142,146 


SURVEYOR, 

# the county, may administer oaths to associates _.. 

compensation ..... 

(T. O.)..... 

SYSTEM, LABOR, 

or tax, may be adopted (P. O.)-- 

(T. O.)----- 

TAX, 

the power to...... 

to be paid over. .—.. 

extending....-. 

TAX ALREADY COLLECTED, 

* how disposed of.... 

TAXES, 

highway (see Township Organization : Road Tax) 

TAX LIST (P. O.).-.. 

(T. O.) .. 

TAX, ROAD, 

order assessing, (P. 0.). 

(T. O.)... 

TAX SYSTEM 

or labor system may be adopted, (P. 0.)... 

(T. O.).. 


59 

146 


47 

. 74-79 

. 50,51 
. 150 

149,150 

.60,150 

. 89,92 

48 

. 75,76 


47,48 
74, 75 

44 

74-77 






































212 


INDEX. 


TEAMS, 

supervisor may hire the necessary (P. O.)..57,58 

overseer to do the same (T. 0.)... 85 

“ THE BOARD OF COUNTY COMMISSIONERS” 

to supersede the county court in matters relating to 

roads and bridges____ 59 

(see § 0, art. 10, Const. 1870.) 

THE COUNTY COURT, 

its jurisdiction over county affairs.--- 41 

(see Board of County Commissioners, County Court, 

Board of /Supervisors of the County.) 

TOLL, 

taking evidence of, duty to maintain a highway .. 

TOLL BRIDGES.. _ _... 170 

TOWN CLERK 

to furnish lists...... 74 

TOWN CLERK’S 

office, commissioners of highways to meet at. 78 

TOWNSHIP ORGANIZATION, 

roads and bridges under (see Primary Organization) 7, 61-151 

I. Highways; the Road; Common Carriers, etc ._ 01-65 

II. Commissioners of Highways....65-79 

III. Overseers of Highways ....79-88 

1Y. Labor and Commutation....84, 85 

V. Fines and Penalties__ 85-89 

VI. Highway Taxes_.'_ 89-92 

V11. Accounts_ 92-94 

VIII. Supervisors......94, 95 

IX. Miscellaneous Provisions.. 95,96 

X. Regulations_ 96-102 

XI. Altering and Vacating Roads, and Laying out 

New Roads___102-151 

I. Highways; The Road; Common Carriers, etc._ 61-65 

1. Roads laid out pursuant to state or territorial 

laws, or dedicated or used for twenty years, and 
not legally vacated, declared to be public high¬ 
ways_ 61 

2. Turn to the right, unless it be out of the beaten 

tract or impracticable, or pay a tine of five dol¬ 
lars for every offense...61, 62 

8. Carriers of passengers prohibited from know¬ 
ingly employing drunken drivers, under a 
penalty of five dollars each per day_ 62 

4. Passenger may by oath certify a case of actual 

drunkenness to his employer, and cause the dis¬ 
charge of the driver___62, 68 

5. Running of horses or carriage upon any occa¬ 

sion prohibited, and made a misdemeanor; 
penalty, a fine not exceeding ten dollars, or 
imprisonment not exceeding sixty days_ 68 

6. Carriers of passengers to hitch or securely fasten 

their horses..... 68 


























INDEX. 


213 


TOWNSHIP ORGANIZATION — Highways; the Road; 
Common Carriers, etc.— Continued. 

7. Carriers of passengers held liable for injuries.. 63, 64 

8. “ Carriage ” defined — every vehicle used for the 

transportation of either passengers or goods_ 64 

9. City ordinances relative to hacks and carriages 
not affected hereby; jurisdiction of justices of 

the peace to two hundred dollars.. 64 

II. Commissioners of Highways ___65-79 

10. To have the care and superintendence of high¬ 
ways and bridges; their duties specified.. 66 

1. To direct repairs of highways, and cause 

bridges to be built__ 66 

2. To lay out, regulate, alter or vacate roads . 66 

3. To have highways sufficiently described of 

record, in the town clerk’s office_ 66 

4. To see that highways and bridges are 

kept in repair.... 66 

5. To divide their town into road districts 

according to law.. 67 

6. To apportion the inhabitants to such dis¬ 
tricts . 69 

7. To cause the overseers of highways to warn 

persons to work on highways, but not allow 
landmarks to be disturbed_ 69 

8. To take care of the tools, implements and 

machinery of highway labor belonging to 
their town_ 69 

9. To purchase the necessary tools, imple¬ 


ments and machinery for such work_ 69 

10. To erect and keep in repair at forks and 
crossings, finger or guide boards ; extirpate 
thistles and other noxious weeds; dig and 
keep wells ; make watering places for teams 
at convenient points, etc___ 69, 70 

11. Their first meeting; treasurer to be chosen f rom 
their number; his duties; to give bond and file 

the same_ 70, 71 

12. To render a detailed account to the board of 

town auditors___—--72, 73 


13. First meeting of the commissioners to take place, 

according to mutual agreement, at the town 
clerk’s office, within ten days after they are 
chosen; other meetings to be held as they may 
think proper______ 73 

14. Town clerk to furnish lists filed by the over¬ 
seers, upon which highway labor and road tax 

are to be ascertained, estimated and assessed— 74 

15. Able-bodied male inhabitants, of the age of 

twenty-one years and upwards to fifty years, to 
labor on the highways not less than one nor 
more than three days in each year.. . 74 

16. Road taxes to be assessed on real and personal 

property__75 

17. Tax lists,howto be made and filed... 75 76 




















214 


INDEX. 


TOWNSHIP ORGANIZATION—Commissioners of High¬ 
ways — Continued. 

18. Copies to be made, authenticated and delivered 

to the overseers respectively... 77 

19. Omissions to be supplied and additions made by 

the overseers___ 77 

20. Private roads may be annexed to highways, and 

work done thereon credited to those who per¬ 
form it_ 77 

21. Notice of the amount of road tax assessed to be 
posted on town house door, within ten days after 

the assessment.. 78,79 

22. Penalties for nonfeasance or misfeasance pre¬ 
scribed . 79 

III. Overseers of Highways__.. 79-83 

23. To be elected at the annual town meeting, one 

for each road district, to hold office for the year. 80 

24. Duties of each of the overseers of highways 

specified. 81,82 

1. He is to keep the highways in his district 

in order.. 81 

2. To warn persons from whom road labor is 
due to perform it; see that it is performed, 

and if in time, receipt therefor_ 81 

3. To collect fines and commutation money, 

and execute the lawful orders of the com¬ 
missioners of highways__.. 81 

4. To deliver a poll list within sixteen days 

after his election to the town clerk_ 81,82 

25. Failure or refusal to serve, to vacate the office 
which by warrant the commissioners are to fill. 82,83 

20. Warrant to be filed and town clerk to give 

notice of his appointment to the appointed_ 83 

27. Penalties for nonfeasance or misfeasance pre¬ 
scribed .... 83 

IV. Labor and Commutation.....84,85 

28. Overseer to give three days’ notice to person 

assessed to work on the highways.. 84 

29. The person notified required to work, or to 
commute by paying one dollar and fifty cents 

per diem ______ 84 

30. Commutation money to be paid within three 

days after notice served...84, 85 

31. Impressment of teams for such labor. 85 

32. Substitute may perform the labor, under re¬ 
strictions ..... 85' 

33. Idlers, the unfaithful and liinderers declared 

offenders, and liable to be fined.... r _ 85 

V. Fines and Penalties...85-89 

34. Fines and penalties prescribed.... 86 

35. Procedure, complaint to be made by the over¬ 
seer to a justice of the peace .. 86 

36. Justice to issue a summons... 87 

37. The hearing, judgment and execution_ 88 

38. Constable to collect, and pay over to the justice 89 



























INDEX. 


215 


TOWNSHIP ORGANIZATION — Fines and Penalties— 

Continued. 

39. Every collected fine a set-off for one day’s 

labor ; two dollars equal to one day’s work. 89 

40. Excuses of no avail; exemption from labor or 

commutation, by the overseer, disallowed.. 89 

VI. Highway Taxes....89-92 

41. Resident owners to be notified ; the three days’ 

notice ; and they may pay in road labor or in 
money_ 89,90 

42. The word “paid” to be written distinctly 

against the names on the list, and receipts to be 
given on payment_ 90 

43. Returns of overseer to the supervisor (in Cook 

county to the county board) five days before the 
annual meeting of the board of supervisors_90,91 

44. Penalties for refusal or neglect to make return 

prescribed....... 92 

45. At least three-fourths of the road labor actually 
assessed to be actually performed by the first day 

of October in each year. 92 

VII. Accounts... 92-94 

46. Overseer to render to one of the commissioners 

of highways, on the second Tuesday next pre¬ 
ceding the annual town meeting, under oath, an 
account, in writing, containing... 5)3 

1. The names of the persons assessed_ 93 

2. The names of those who have worked, with 

the number of days, respectively_ 93 

3. The names of those fined, and the amount 

of each fine__ 93 

4. The names of those who have commuted, 

and the manner of the expenditure of com¬ 
mutation money . 93 

5. The amount of uncollected tax returned to 

the supervisor, as required in section forty- 
three, supra ______ 93 

47. He shall also then and there account for all 

moneys in hand, and pay the same over to his 
successor in office .. 94 

48. Penalties for refusing or neglecting to account 94 

VIII. Supervisors_ 94,95 

49. The supervisor is to receive the list pursuant 

to section forty-four, supra, and lay the same 
before the county board_ 95 

50. Arrearages of road tax returned to be levied 
and collected with the county taxes, and paid 

over to the commissioners of highways. 95 

IX. Miscellaneous Provisions_ 95,96 

51. Compensation of the overseer...— 95 

52. Annual town meeting may require road tax to 

be collected only in money, to be expended by and 
under the direction of the commissioners_ 96 

53. Town clerk to furnish to the county clerk, before 
the first day of September, a certified plat of the 

road districts in his town.... 96 
























216 


INDEX 


TOWNSHIP ORGANIZATION — Miscellaneous Pro¬ 
visions — Continued. 

54. In extending the road taxes the county clerk is 

to designate the district to which it belongs- 96 

55. County and town collectors to furnish abstract 

of taxes to the treasurer of' the commissioners of 
highways....... 96 

56. Commissioners to pay over the taxes according 

to the abstracts... —. 96 

X. Regulations ___________.96-102 

57. Defacing guide boards, etc..... 97 

58. Obstructions to highways....97,98 

59. Destroying or injuring bridges... 98 

60. Suits for fines and penalties.... 98 

61. Fines recovered to be paid to the commissioners 

of highways__ 98 

62. Shade and ornamental trees, hedges, etc..98, 99 

63. Underground crossings. 99 

64. Fences may be connected, in certain cases, with 

bridges______.99, 100 

65. Public highways to be not less than fifty feet 

nor more than 66 feet wide__ 100 

66. Notice — “Five dollars fine for riding or 
driving on this bridge faster than a walk ” — may 

be put up_ 100 

67. Fine may be imposed__ __ 100 

68. Overseers may enter upon land adjacent to high¬ 
ways, to open ditches, drains, etc_100-102 

XI. Altering and Vacating Roads, and Laying 

Out New Roads___102-151 

69. Twelve or more freeholders to petition..103, 104, 105 

70. Requisites of the petition__ 105 

71. Copies to be posted in three of the most public 

places in the vicinity..105-108 

72. Commissioners to meet, examine and deter¬ 
mine ___108-110 

73. Adjournment for, not to exceed twenty days in 

all; procedure prescribed_ Ill 

74. Petition to vacate....... Ill 

75. Petition for new road...111-114 

76. Damages to be ascertained and order made not¬ 

withstanding an appeal from a justice of the 
peace.........115,116 

77. Damages may be settled and release received 

from owners of damaged property....116, 117 

78. Certificate of doings to be presented to any 

justice of the peace of the county asking for a jury, 118 

79. The notice of application to be given to the 

owners .......119,120 

80. The jurors and the jury___ 119 

81. Challenge for cause ; notice of trial to owners, 

by the justice..... 120 

82. unknown owners ; notice to be published._ 120 

83. Service of the notice.....120,121 

84. The jury sworn.... 121 
































INDEX. 


21? 


TOWNSHIP ORGANIZATION—Altering and Vacating 
Roads, and Laying Out New Roads — Continued. 

85. l'lie hearing; verdict; rules for estimating 

damages--121,122 

86. Separate trials to be had__126 

87. Final meeting of the commissioners... 123 

88. All proceedings may be revoked .... 124 

89. Order to be entered if proceedings be not re¬ 
voked -----124-129 

90. In cases where the damages are agreed on and 

right of way released, order may at once be 
entered_ 129 

91. Inducements to establish, alter, widen or vacate 

any road may be offered to the commissioners-. 130 

92. Record of the town clerk or a certified copy of 

papers and records prima facie evidence of the 
regularity of the prior proceedings._ 130 

93. Private roads___130, 131 

94. Two years in which to open after entry of the 

order; limitations__ 131 

95. Eight months allowed to harvest crops, remove 

fences, etc_ 131 

96. Persons may be paid for work done on private 

roads___131, 132 

97. Roads on town lines ; coterminous towns_ 132 

98. Allotment to the several towns interested — 

the rules of_._.__ 132 

99. Appeal from the verdict of the jury to three 

supervisors; notices and allowance..._132-135 

100. Three supervisors to be summoned and to hear 

the appeal_ 135 

101. Report of their decision_136-139 

102. Costs of appeal, bond, etc_ .139-140 

103. Majority opinion of the supervisors to prevail, 140 

104. Appeals where several towns are interested, 140,141 

105. Maintenance of roads between coterminous 

towns...141 142 

106. Roads on state line.... 143 

107. Bridges between several towns or counties_ 143 

108. Joint contracts, how made____ 143 

109. Contribution for expenses, how compelled ..143,144 

110. Refusal of commissioners to act; personally 

liable, when....—. 144 

111. Appropriations may be had on proper applica¬ 
tion from the county to build expensive bridges 144 

112. Special town meeting may be called to raise 
money ; bonds may be issued —modus operandi A44 ,145 

113. Upon petition of twelve legal voters, surveyor 

to be employed--- 146 

114. Establishment of a new road on the route of 

an established road not to vacate the prior road. 146 

115. Bridges, how to be contracted for- 146 

116. Road tax may be paid by work on bridges... 147 


10 

























218 


INDEX. 


TOWNSHIP ORGANIZATION— Altering and Vacating 
Roads, and Laying Out New Roads — Continued. 

117. When road is to pass through inclosure, sixty 

days’ notice to be given to owner or occupant to 
remove the fences, etc... 

118. Compensation of the commissioners of high¬ 
ways ____— 

119. Highways laid out to be opened within five 

years, or deemed vacated... 

120. The highway commissioners to ascertain the 

amount of money necessary for highways and 
bridges, and report the same to the supervisor, 
who shall cause the same to be submitted to the 
county board____148,149 

121. Extending road taxes by the county clerk..149,150 

122. Certificate of the county clerk to the treasurer 

of the commissioners of highways... . 150 

128. Tax to be paid over when collected to such 
treasurer_____ 150 

124. Commissioners of highways to furnish a list 
of tax-pavers of each district previous to the first 

day of October in each year___ 150 

125. Taxes collected under the “Act in regard to 
roads and bridges,” approved April 10, 1872, to 
be paid over to the treasurer of the commission¬ 
ers of highways for improving roads and bridges 150 


12G. Act of April 10, 1872, aforesaid, repealed_150,151 

127. Emergent..... 151 

TRAVEL 

may slightly deviate from the thread of the road.14, 02 

TREASURER 

of commissioner of highways, to be elected at their 

first meeting, to give bond; the bond___70,71 

TREES AND FRUIT 

growing on the highway belong to the owner of the 

fee......... 4 

TRESPASS 

by owner of the fee will lie for digging up and remov¬ 
ing the soil, etc____ 4 

TURN 

to the right, if practicable.....G, 8, 02 

TURNPIKES, 

toll bridges and plank roads...174-170 

1. A turnpike is a gate, but generally a highway over 

which the public have the right to travel upon pay¬ 
ment of toll____.174,175 

2. The law of the road.... 175 

8. Toll bridges______ 170 

4. Plank roads_____. 170 

UNFAVORABLE REPORT 

of viewers (P. O.)... 10-22 

of commissioners (T. O.).....108-110 


147 

148 
148 






















INDEX. 


219 


UNPAID TAXES, 

supervisor to sue for (P. 0.). 52 

overseer to sue for (T. 0.)..... 86-89 

procedure in form and substance detailed __.86-89 


USELESS OR BURDENSOME ROAD 

may be vacated.._.24,103-105 

USER, 

twenty years’ acquiescence....2,12, 61 

VACANCY, 

when and how it may occur in office of e ipervisor, and 

how and when filled (P. 0.)__ 45 

in office of commissioner of highways (T. O.). 80 

in office of overseer of highways (T. O.). 82 

VERDICT 

of a jury assessing damages._33,121,122 

VIEW, 

expenses of, to be deposited (P. O.). 14 


VIEWERS (P. O.) 

may be appointed..... 

order appointing__ 

order appointing, for private way_ 

when appointed, their powers and duties 

to be sworn... 

their duties further prescribed.. 

modus operandi of, suggested:.. 

report..... 

compensation .. 


16 
19 
30 
16 
35 
35 
19 
21 -24 
59 


VOTERS, 

thirty-five, residing in the county, within five miles of 
the road, to apply (see Primary Organization: Free¬ 
holder) .... 26 


VOUCHERS 

should be taken and kept by the supervisor (P. O.)_ 56 

should be taken and kept by the commissioner of high¬ 
ways.....65-79 

should be taken and kept by the overseer of highways. 79-88 


WAIVER 

by owner’s acceptance of damages.34 

WARNING 

by the supervisor (P. O.).— 50 

by the overseer (T. O.)...... 84 

WATER-COURSES 

to be made...57,100-102 


WAYS, 

kinds of, specified... 1 

WAYS, PRIVATE.. 176,178 

WILLFUL INJURY. 11,64 






























220 


INDEX. 


WORK, 

regulations for, prescribed (P. O.)___ 49 

regulations for, prescribed (T. O.)...84,85 

(see Labor and Commutation .) 

YEARS, 

twenty, essential usually to make a dedication by 

acquiescence.....2,12,18,91 





The Municipal Officer 


A Manual for County, City, Town, Village and Precinct Officers, and Citizens 
generally, whether Under Primary or Township Organization, in the State of 
Illinois, showing the practical relations of the individual to the State, and its muni¬ 
cipal and political subdivisions, as well as the functions and powers, the rights and 
duties and the means and agencies of public corporations; with Rules of Order for 
County Boards of Supervisors, and parliamentary rules for conducting Town 
and other public meetings, accompanied with forms, etc. 


BY EDWARD J. HILL, 


Author of “ The Law of Procedure,”—“ Chancery,” “ Common 


Law,” “ Probate,” etc. 


Early in July, 1873, we shall publish “ The Municipal Officer.” It is intended to be a 
thoroughgoing, practical treatise, exactly what is set forth on the title-page— a 
Manual not only for the public officer but the citizen. It will contain the 
substance of the Constitution and the Statutes, with the Judicial Decisions 
relating to Municipal Corporations, Counties, Towns, Cities and Villages in the 
State of Illinois, with all the necessary forms. The following is the 

SUMMARY OF CONTENTS: 


Chapter I.—Int rod act ion. 

Sec. I. The Elector or American Citizen. 

Sec. II. The State of Illinois and its po¬ 
litical and municipal subdivi¬ 
sions. 

Ch a) iter II.—Manic ip a, l C o rp o ratio ns. 

Sec. I. Powers and agencies, means and 
duties. 

Sec. II. Taxation, Assessment, Licenses 
and Nuisances. 

Sec. III. Administration of justice and 
conservation of the peace. 

Ch a pter III.—Co anti es. 

Sec. I. Introduction, History and Chron¬ 
ology. 

Sec. II. County Government—Two Sys¬ 
tems : 

I. Pkimarv Organization: 

(Dec. 12 , 1778 - 1873 ). 

t. County Court ( 1778 - 1819 ). 

2. County Commissioners’ Court 

(1819-1849). 

3. County Court (1849-1873). 


4. The Board of County Com¬ 
missioners (from 1873). 

II. Township Organization: 

1. The Board of Supervisors : 

(From 1849). 

1. Under Constitution of 1848. 

2. Under Constitution of 1870. 

Sec. III. County Officers. 

1. Constitutional Provisions. 

2. The County Judge and Asso¬ 

ciate Justices of the Peace. 

3. The Commissioners. 

4. The Supervisors. 

5. Sheriff and Coroner. 

6. County Treasurer. 

7. Clerks of the Courts and Re¬ 

corder. 

8. State’s Attorney. 

9. County Surveyor. 

to. Justices of the Peace and 
Police Magistrates. 
ti. Constable's. 

T2. Commissioners and Supervi¬ 
sors of Highways. 

13. Assessors. 

14. Collectors. 

15 . Miscellaneous. 

1. Public Administrator. 

2. County Attorney. 

3. Superintendent of' Schools, etc. 


(Over.) 






THE MUA T iCiPAL OFFICER.—Contents Continued. 


Chapter IV. — Towns , Cities and 
Villages. 

Sec. I. Historical Summary. 

.Sec. II. The General Act of 1872 and 
Amendments of 1873 . 

1. Re-incorporation and Incor¬ 

poration. 

2. Mayor. 

3. City Council. 

4. Elections. 

5. Powers of City Council. 

6. Powers and Duties of Officers. 

7. Finance. 

8. Assessment and Collection of 

Taxes. 

9. Special Assessments. 

10. Miscellaneous Provisions. 

11. Villages since 1872. 

12. Conclusion. 

Sec. III. Township Organization. 

1. Proceedings to Adopt. 

2. Powers and Rights of Towns. 

3. Alteration of Boundaries and 

Division of Towns. 

4. Town Meetings ; powers of 

Electors 

5. Conducting Town Meetings. 

6. Qualification for and Tenure 

of Office. 

7. Filling Vacancies in Town 

Offices. 

8. The Supervisor and hisDuties. 

9. The Town Clerk and his 

Duties. 

10. 1. The Board of Auditors. 

2. The Board of Health. 

11. Compensation of Town Offi¬ 

cers. 

12. Legal Proceedings by and 

against Towns. 

13. Town Agents, Officers and 

Employes. 

14. Towns generally. 

Chapter V. — Elections. 

Sec. I. For National Officers. 

Sec. II. For State Officers. 

Sec. III. For County Officers. 

Sec. IV. For Township, Precinct and 
District Officers, etc. 

Sec. V. On Proposed Measures ; for or 
against them. 

Sec. VI. Generally. 



Ch apter l T.—lIigh ways. 

Sec. I. Highways and Bridges. 

Sec. II. Ferries. 

Sec. III. Railways and Canals. 

Sec. IV. Rivers. 

Chapter JTI. — Reventie. 

Sec. I. Taxes. 1. State. 2. Municipal. 
Sec. II. Special Assessments. 

Sec. III. Licenses. 

Sec. IV. Fines and Penalties. 

Sec. V. Funds. 

Sec. VI. The Commonwealth. 

Chapter VIII.—Public Property. 
Sec. I. Real Property and Improve¬ 
ments. 

Sec. II. Personal Property. 

Sec. III. Generally. 

Chapter IX. — Education. 

Sec. I. School Districts. 

Sec. II. Public Schools. 

Sec. 111 . Taxes, Expenses, etc. 

Sec. IV. Generally. 

Chapter A'. — Adtn i n istrat ion of Justice 
and Conservation of the Ruhlic Reace. 

Sec. I. Courts of Record ; Circuit and 
County Courts. 

1. At Law and in Equity. 

2. In Criminal Matters. 

3. In Probate and Conservation. 

4. Justices of the Peace and 

Police Magistrates. 

5. The Sheriff and Coroner. 

6. Constables and Police Officers. 

Chapter XI.—The ]*oor. 

Chapter XII.—Actions and Suits. 

Sec. I. By Municipal Corporations. 

Sec. II. Against Municipal Corporations. 
Sec. III. Special and Miscellaneous Pro¬ 
ceedings. 

Ch apter XIII.—Miscellaneous 
Matters. 

Chapter XIV. — Forms. 
APPENDIX. 


We take pleasure in calling the attention of the public authorities in your County 
to this work and its contents. It will be in duodecimo form, of about 600 pages, bound 
in Law Sheep. Price $4.00. To be issued July 1st , iSjj. 

E. B. MYERS, Law Publisher, 93 Washington St., Chicago. 












H ill’s Probate Jurisdiction and Practice. 


The Probate Jurisdiction and Practice in the County Courts, according to the Statutes 
and Decisions in the State of Illinois, containing the Law of Wills, of Adminis¬ 
tration and of Guardian and Ward ; being a guide for Executors, Administrators, 
Guardians and Conservators, in the management and settlement of Estates, with 
forms and precedents. By Edward J. Hill, Esq. I vol., 8vo. In Press , to issue 
in July , 187j. 

SUMMARY OF CONTENTS: 

Ch apter I. —Jur isdiction. 


Sec. I. Introduction. 

Sec. II. County Courts. In Probate. 

Chapter II.—Testate Estates. 

Sec. I. Wills. 

Sec. II. Probate of Wills. 

Sec. III. Executors. 

1. Appointment. 

2. Powers and Duties. 

2. Renunciation, Resignation and 
Removal. 

Chapter III.—Intestate Estates. 
Sec. I. . Introduction. 

Sec. II. Appointment of Administrators. 
Sec. III. Powers and Duties. 

Sec. IV. Resignation and Removal. 

Chapter IV.—Estates and Persons of 
Infants or Minors. 

Sec. I. Infants. 

Sec. II. Appointment of Guardians. 

Sec. III. Powers and Duties. Guardian 
and Ward. 

Sec. IV. Resignation and Removal. 

Chapter V.—Incapacitated Persons 
and their Estates. 

Sec. I. Idiots* Lunatics, Drunkards, etc. 

Sec. II. Appointment of Conservators. 

Sec. III. Powers and Duties. 

Sec. IV. Removal. 

Sec. V. Forms. 

Chapter VI.—Personal Property. 
Sec. I. Kinds of Personal Property. 

Sec. II. In the hands of the Executor. 

Sec. III. In the hands of the Adminis¬ 
trator. 

Sec. IV. In the hands of the Guardian. 
Sec. V. In the hands of the Conservator. 


Chapter VII.—Real Property. 

Sec. I. Of the nature of Real Property. 
Sec. II. Care and disposition of by the 

n 

Executor. 

Sec. III. Care and disposition of by the 
Administrator. 

Sec. IV. Care and disposition of by the 
Guardian. 

Sec. V. Care and disposition of by the 
Conservator. 

Sec. VI. Proceedings to divest the title 
of heirs and cesluis que trust. 

Chapter VIII. — Expenses, Allowances, 
Claims, Legacies, and Distribution. 
Sec. I. Expenses of Administration. 
Sec. II. Claims, Proof and Allowance of. 
Sec. III. Allowances. 

Sec. IV. Legacies, Payment of, etc. 

Ch apter IX. —A ccoun ts. 

Sec. I. By Executor. 

Sec. II. By Administrators. 

Sec. III. By Guardians. 

Sec. IV. Conservators. 

Chapter X.—The Law of Descent. 
Chapter XI. — Appeals. 
Chapter XII.—Miscellaneous Matters. 

Chapter XIII.—Costs and Fees. 
Chapter XIV.—The Prohate Record. 
APPENDIX. 

1.—Rales of the County Court of Cook 
County. 


II.—Additional Forms. 


This Book will contain about 350 pages, 8vo. Price $4.00. An indispensable 
work for all having occasion to transact business in Probate. 

E. B. MYERS, Law Publisher, 93 Washington St., Chicago. 



























































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